Sunday Trading Bill

HL Deb 18 April 1994 vol 554 cc30-74

4.26 p.m.

House again in Committee on Schedule 4.

Baroness Turner of Camden moved Amendment No. 31: Page 14, line 34, at end insert: ("( ) Where an Industrial Tribunal rules that a dismissal is unfair within the meaning of this Schedule and an order for reinstatement or re-engagement is made, should the employer fail to comply, the Industrial Tribunal may make a special award to the dismissed employee within the terms of section 158 of the Trade Union and Labour Relations (Consolidation) Act 1992.").

The noble Baroness said: I am attempting in this amendment to deal with a number of misgivings that were expressed at Second Reading, particularly by the noble Lord, Lord Rochester, and the noble Baroness, Lady Seear, that the employment rights already written into the Bill would be of little practical value because they would be very difficult to enforce. I have a great deal of sympathy with that view. Unfortunately, it applies to all legislation purporting to provide rights to workers. There is no legal aid for individuals at industrial tribunals, for example. It often takes a long time for cases to be heard. If the employer contests and appeals, matters can simply drag on. I have had some experience of such cases.

My amendment seeks to deal with what may happen if an industrial tribunal decides in favour of an employee who has been sacked for refusing to work on a Sunday, having done so in the manner that is prescribed in the legislation. It is not all that usual for a tribunal to award re-engagement or reinstatement as the appropriate remedy—although it seems to me that in conditions of high unemployment that is the best remedy so far as concerns the employee. However, time may have passed and a job may have been filled, so re-engagement is another possibility.

I have known cases where the tribunal finding has been for the worker, but the employer has appealed. I am thinking of a case which, after about three years, eventually went back to the tribunal. The employer had refused either to reinstate or re-engage. The amount of compensation was exceedingly small considering the amount of time that the case had taken and since at all levels the relevant courts had agreed that the employer was at fault.

The employer has the option to refuse to enforce reinstatement or re-engagement simply by paying extra compensation up to £5,330. I emphasise the word "maximum". But there is provision in our legislation for awards of higher compensation in cases that involve anti-union discrimination or if there is discrimination by the employer against non-members of unions. If after a finding of unfair dismissal in such cases the employer refuses to reinstate or re-engage, the tribunal may make a special compensation award with a minimum of £13,400 and a maximum of £26,800. The aim of this amendment is to strengthen the special protection which it is claimed was intended in this Bill. I quite accept that could apply in only a small minority of cases. But I believe that the clause about special compensation which appears in the Trade Union and Labour Relations (Consolidation) Act 1992 has proved to be a deterrent. There have not been many cases of dismissals coming within the categories concerned—or at least, they have not reached tribunals.

If the penalties for dismissing workers who ought not to work on Sundays are made heavier, and if an employer realises that he could be ordered to reinstate or re-engage and that the penalties for not doing so could be considerable, the provisions in the Bill for the protection of employees really would have some teeth. I hope that will reassure those who were a little reluctant to support the preferred, six-hour option (if one may call it that) because they could not see how real protection could be afforded. I hope the Committee will agree that the amendment will substantially add to the protection available to vulnerable employees. I beg to move.

4.30 p.m.

Lord Rochester

I put my name to the amendment; my only doubt is whether it goes far enough. Section 158 of the Trade Union and Labour Relations (Consolidation) Act prescribes that where the award of compensation is made under Section 71(2) (a) of the Employment Protection (Consolidation) Act 1978, unless the employer satisfies the tribunal that it was not practicable to comply with the order for reinstatement or re-engagement, the amount of the special award shall be increased to one week's pay multiplied by 156, or £20,100 whichever is the greater". As I see it, it is accordingly not permissive but mandatory for a special award of a specific amount to be made in those circumstances. I trust therefore that the noble Lord, Lord Henley, will confirm when he replies that such an award should be made in all cases where a shopworker is dismissed unfairly for refusing to work on Sunday and the employer fails to comply with an order for reinstatement or re-engagement. At the least a cross-reference to Section 158 needs to be made on the face of the Bill.

Lord Campbell of Alloway

I apologise for not being in my place earlier. This is an amendment on which I wish to seek clarification. The special award is surely an extension of the current law relating to special awards. As I understand the current law—subject to correction—at the moment special awards are only available on grounds of dismissal for trade union membership and trade union activities.

Baroness Turner of Camden

Perhaps I can help the noble Lord. Special awards are also available if an employer dismisses an individual for refusing to join a trade union. That was one of the main reasons why special damages were introduced.

Lord Campbell of Alloway

I am obliged to the noble Baroness for her comments. The situation is roughly as I understood it. The special award is given in a special case where in effect the dismissal strikes at the fundamental concepts of individual freedom. The amendment seeks to extend that concept. But, with respect to the noble Lord, Lord Rochester, the two situations are simply not analogous. The usual maximum for an award is around £22,000; the special award is considerably more, something of the order of £35,000. The amendment will produce a situation which alters the structure of the unfair dismissal procedure. Why should we do that? That is the question I find difficulty in answering.

Lord Skelmersdale

While being in no sense a practitioner in this matter, I recall from my days when I spoke in your Lordships' Chamber for the Department of Employment when this and other matters came up from time to time, that special discretionary awards were extremely rare birds. Of course, they were originally invented—I am sure that the noble Baroness, Lady Turner, will agree—because it was felt that specific freedoms should be enshrined in trade union law, and particularly in trade union dismissal law.

Rather like my noble friend Lord Campbell, I find it difficult to see what specific freedom is being disabused in the cases mentioned by both the noble Lord, Lord Rochester, and the noble Baroness, Lady Turner. One must remember also in connection with this Bill that all noble Lords have been advised about, and some have been particularly concerned with, the plight of the small shopkeeper. As I understand it, the amendment will apply to all shopkeepers operating on a Sunday, whatever the size of the shop. The maximum difference we are discussing is some £15,000, if my figures are correct and I amalgamate what the noble Lord, Lord Rochester, said with what was said by my noble friend Lord Campbell of Alloway. That could occasionally knock a tremendous hole in the earnings of the small shopkeepers whom many of us are anxious to protect.

The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley)

Amendment No. 31 seeks to provide special awards for unfair dismissals arising from a refusal to work on Sundays where the employer has refused to comply with an order for re-instatement or for re-engagement. I appreciate that the sentiment behind the amendment is to ensure that shopworkers may not be denied their employment if they exercise their right not to work on Sundays. I hope I am able to persuade the Committee that the provision of a special award in such cases would not be appropriate, and would be like taking a sledgehammer to crack a nut.

First, unfair dismissal legislation already recognises the serious nature of this kind of action on the part of the employer. As my noble friend Lord Skelmersdale made clear, it applies to any shopkeeper however large or small. It provides that where an employer refuses to comply with a tribunal order for re-engagement or re-instatement and it was practicable for him to do so, then the employee shall be awarded an "additional" award of up to £5,330. It is called "additional" because it supplements the basic award and the compensatory award and brings the total an employee may receive to £22,480.

As the noble Baroness highlighted in the amendment, in some cases a "special award", set at a higher level, may be granted in place of the additional award. However, the provision of special awards should be the exception rather than the rule, and I should like to explain why the Government believe it would be inappropriate to provide for it in this case.

Special awards are available in only a few cases where the Government regard dismissal as particularly serious; for example, where the reason is the employee's union membership or activities or non-membership of a union. I should stress also—and this may strengthen the views of my noble friend Lord Campbell of Alloway—that the amendment goes slightly further and covers another class of people not mentioned by the noble Baroness. It covers the activities of employees acting as representatives protecting the health and safety of others. It is an important point where the employee has a representative function for his colleagues at work in the serious position of health and safety. We believe that those two situations are special and should be distinguished from the case put forward by the noble Baroness, and special awards should be available only in those exceptional circumstances. Accordingly, their availability must continue to be restricted to those exceptional cases.

The issue is where we draw the line. We are all agreed that a dismissal relating to a refusal to do shop work on a Sunday is wrong and should be discouraged. However, we do not believe that such dismissals are sufficiently different in kind from unfair dismissals generally to warrant the special treatment the amendment proposes. But we say that in the examples I quoted the representative function is particularly in question.

Schedule 4 provides shopworkers with a very generous package of new rights to ensure that Sunday shop work continues to be voluntary. The rights are not restricted to those who have conscientious or religious objections to Sunday working. The schedule does not seek to distinguish between any employee who decides to opt out of Sunday shop work so that he can, for example, play football, or an employee who wants to spend the rest of the day with his or her family. In no way are such dismissals comparable with dismissals for trade union activities, or for health and safety reasons, which raise questions of individual freedom and the discharging of very important representative functions on matters affecting the health and safety of others.

Following that explanation of our position, I trust therefore that the noble Baroness will be content to withdraw her amendment and I hope that the Committee will generally agree that the remedies that are available should continue to reflect the fundamental distinction that I highlighted.

Lord Stoddart of Swindon

Before the noble Lord sits down, he has just mentioned that Schedule 4 gives shopworkers very generous protection. I shall not comment on that. However, can he give us an assurance —a very firm assurance—that those provisions will not in future be undermined by orders brought forward under the deregulation Bill, which is likely to become an Act, as could be done without any proper discussion through primary legislation? Can he give that assurance?

Lord Henley

The noble Lord will have to wait for the deregulation Bill to come before the House. Schedule 4 represents a fundamental new package of rights for those who work in shops on Sunday. It goes quite beyond the rights of other workers on Sunday. There are a great many people who work on Sunday. It has taken considerable time to reach the level of compromise that in all parts of this House and another place was thought right in order to establish the right level and right extent of rights. I should have thought it very unlikely that any future government—obviously I cannot speak for any future government—would wish to undermine the rights that we have laboured by means of compromise so long and so hard to establish—the noble Lord will accept that everyone on all sides has compromised to a considerable degree—unless it so turned out that the Bill and its workings—or the Act as it would become—were not working as they should.

Baroness Turner of Camden

I regret to learn that the Government are not prepared to accept the amendment. If it were agreed, I feel that it would be further protection for the rights of employees who are covered by the Bill. The Bill specifically breaks new ground because this is a radical departure. The freedom given by the Bill needs to have some teeth in order to make sure that employees really do benefit from the provisions of the Bill. Where an employer interferes with the rights that are given in this legislation and sacks someone for not agreeing to work on Sunday and then an industrial tribunal finds for the employee but the employer still refuses to reinstate or re-engage, if that is what the tribunal recommends, there is an obligation on the employer to pay for the choice that he has made in not honouring the award of the tribunal. There is little difference when it comes to freedom between the freedom to exercise a right that is clearly given in legislation and a right to belong or not to belong to a union or a right not to be dismissed for refusing to belong to a trade union. For those reasons I very much regret that the Government have seen fit not to support the amendment.

As to the comments made by the noble Lord, Lord Rochester, that the original Section 158 refers to the requirement that the industrial tribunal "shall" make a special award, I deliberately put "may" make a special award because it seemed to me that if the tribunal were to be given some discretion, the amendment might be more commendable to the Government. Clearly, however, they are not prepared to accept the amendment. It is not my intention today to press it to a vote. Therefore, I beg leave to withdraw the amendment, although I may come back with something rather similar on Report, having looked in Hansard tomorrow at what the noble Lord had to say.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord McCarthy moved Amendment No. 32: Page 15, line 10, at end insert: ("8A.—(1) For the purposes of Part V of the 1978 Act, a dismissal shall include a 'relevant rejection' within the meaning of this paragraph. (2) There is a relevant rejection within the meaning of this paragraph when, after the commencement of this Act—

1. (a) an employer does not accept the application of a person to become his employee; and
2. (b) the reason or principal reason for the rejection by the employer of the applicant for employment is the refusal or proposed refusal of the applicant to work on Sundays, or the belief of the employer that he may so refuse.

(3) In this paragraph, a rejection includes any case in which the employer—

1. (a) fails or refuses to accept a person's application,
2. (b) discriminates to the disadvantage of an applicant in the manner in which he deals with it (whether by reference to work on Sundays or otherwise), or
3. (c) withdraws an offer made to such a person, or persuades or otherwise causes him not to accept it (whether by way of changes in the terms of the offer or otherwise).

(4) The burden of proof of the reason for a rejection shall under this paragraph rest on the employer.").

The noble Lord said: I am glad that the noble Earl, Lord Ferrers, is in his place because I wrote down what he said —the noble Earl will correct me if I am wrong —in answer, at some point, to Amendment No. 30. He said that the object of the schedule is that no shopworker should be compelled against his or her will to perform Sunday work. The object of this amendment is to ensure that that is the case. My argument is that without the amendment we cannot ensure that that is the case.

The amendment provides for compensation—that is what industrial tribunals give in 98 per cent. of the cases—for an applicant for a job where a tribunal decides—the tribunal must decide—that there is real doubt about the reason that the worker was not engaged and that the principal reason is that the employer believed that the worker would not work on Sundays, either because the employee was asked and said that he would not work on Sunday, or because for some reason the employer had suspicions that that would not be the case. Where the tribunal is sure that that is so, there is an award of compensation.

The distinction between what I am suggesting and what exists at the moment has already been discussed. After the passage of the Bill, workers, especially if they have a conscientious objection to working on a Sunday, will be put into an impossible position when they are taken on or when they are considering being taken on. Should they say that they will not work on Sunday because they do not believe in it; that it is against their convictions—against their religious convictions perhaps? Should they lie or dissemble? Should they in some way imply that they will think about it when it comes? If they give the employer a clear indication that they will not work on Sunday, the employer would be perfectly lawfully entitled under the Bill as it stands not to engage them. I am trying to protect them in those circumstances. Should they give some doubtful answer and then say, when they are on the job, "Now I am here, I shall not work on a Sunday. For the next three months I refuse to work on Sunday and I am putting in an opt-out notice"? In those circumstances I should have thought that it would be perfectly legitimate and possible for the employer to dismiss them—not because they refused to work on Sunday but because they lied or dissembled at the point of engagement. Therefore, there is no protection for workers in those circumstances. The only protection for new workers which makes any sense out of the whole of Schedule 4 is to pass the amendment.

The amendment, or something like it, was suggested by many people before me. The Keep Sunday Special Campaign and the people who now support the present option wanted to have in Schedule 4 a provision of this kind. In the White Paper the Government said that they did not believe that this was the right approach and that it was unworkable. In another place on 9th February Mr. Lloyd was facing an amendment on this basis. He said (at col. 320 of the Official Report) that he could not possibly accept it because it was unworkable and because employers would be unable to advertise jobs requiring Sunday work if an amendment of this kind was in the Bill. He went on to say that employers would be laid open to claims of discrimination if anyone failed to get a job and was subsequently able to say that he or she did not want Sunday work. He continued—I should like to quote what he said because this is really the best argument that the Government have so far advanced: The opt-outs exist for honest workers who have been employed by a shopkeeper expecting not to work on Sunday—if there is no reason why they should he obliged to do so—and for those making a career in shop work whose circumstances at one point in their life make Sunday working perfectly acceptable to them but who subsequently need to change their working pattern because of home circumstances, circumstances of conscience —which apparently come and go— circumstances of obligation to other relations or the arrival of children. That is what the protections are intended to achieve". —[Official Report, Commons, 9/2/94; col. 320.] In other words, as the Government see them, they are essentially temporary. You cannot have a permanent desire not to work on Sunday; it is an oscillating, intermittent desire which is related to some special set of circumstances where perhaps the employer would permit the opt out.

I suggest to the Committee that all these objections can be answered. We know that the Government do not think that it is the right approach because originally when the White Paper was published they did not want anything at all in the Bill about new workers; they wanted to do something only about existing workers. If they had not been prepared to change that approach, they would not have got a majority and therefore they changed the approach.

We know that the Government do not like what they are being forced to do. They say that the provision is unworkable. We have sought to argue that it is not this provision which is unworkable because it works in relation to sex and race in exactly the same way. We are suggesting protection at the point of entry and that operates in the case of sex and race. What is not worth having is the present provision which forces people to work for three months before they can operate the opt out.

The defence is that the employers could not advertise, but of course they could. They could still advertise that it is Sunday only jobs, and there is nothing wrong with that. In the advertisement they could also say, "Workers may be expected to volunteer at the usual premium rates for Sunday working". Everything we have been told from the other side of the Committee suggests that hundreds and hundreds of workers will fall over themselves to do Sunday work for the overtime premium.

As regards discrimination, that would have to be proved. There would not be hundreds of thousands of people applying to tribunals on the basis that they have been discriminated against. As I said, we have had exactly the same provisions for sex and race and we have not had many cases. The Government are suggesting that there should be an oscillating, intermittent right, but I suggest that that is not much use to anybody.

The last point I wish to raise is this, and I ask the Government to think very carefully about it. I suggest that it is very likely that what is being proposed and put into the Bill is indirect sex discrimination. We have had examples already of indirect sex discrimination when in the education service there have been compulsory employment obligations which the tribunals and the European Court have said involve unfair discrimination against women. It was indirect discrimination because it was difficult for them to carry out these obligations, and women make up the bulk of teachers. Women also make up the bulk of Sunday workers. A set of provisions which is difficult for them to comply with is a form of indirect sex discrimination. Therefore, there is no reason why the Government should object to this amendment and every reason why they should support it. I beg to move.

Baroness Turner of Camden

I rise to support the amendment moved by my noble friend. He is quite right. A great deal of discrimination may take place when employees are being appointed. The employer may pretend that the reason for not appointing a person who might otherwise have been appointed to the job is something other than a refusal to work on Sunday. But if the applicant has a strong reason for feeling that that is the real reason then he should have some redress. We have laws on discrimination on other grounds. My noble friend has given some details of what those are. It is an admirably drafted amendment which makes it quite clear—and again this is something which is rather important—that the onus of proof will he on the employer rather than the other way round. Unless workers can be given protection at the very beginning, the provisions of the Bill about employee protection will ultimately mean very little indeed. I hope the Committee will support this amendment.

Viscount Brentford

I am not very happy with the Bill as drafted on the basis that it is a great encouragement, as the noble Lord, Lord McCarthy, said, to an applicant at a job interview to tell a lie. That does not make me feel very happy. The Government have consistently said that they will offer protection to both present and future employees, but because this House has voted that so many shops should be open on Sunday, it is obviously going to be important for shop owners and managers to employ staff who agree to work on Sunday.

Equally, Sunday is only one day in seven when the shops will be open. So there should be a great number of employees which a shop should take on who will not work on Sunday, and therefore the shop owner is happy that those employees do not work on a Sunday. There have been references to shop owners who are prepared to say that some employees can work on Sunday and some may not, as opposed to those I have read about who are saying in blanket form that all employees must agree to work on Sunday. I am unhappy on both scores. When the Minister winds up I wonder whether he can help me on that point.

Lord Renton

Like all other Members of the Committee, I have one basic fear about Sunday trading in that people might be compelled, for one reason or another, to work on Sunday when they do not wish to do so. They may wish to be with their families or even to sing in the choir in church. There are all kinds of reasons. I was relieved when I saw what the Government had included in the fourth schedule because it gives a great deal of protection.

But as I understand the case put forward by the noble Lord, Lord McCarthy, in his amendment, he is saying that the provisions of the schedule apply to those already employed or who are about to be employed, but that we need to go one stage further and deal with the possibility of refusal of employment. Over fairly recent years we have had various kinds of law to prevent refusal such as unfair discrimination against women, an obligation to have a quota of disabled people where it is feasible to do so and also the race discrimination legislation. That is the kind of provision which we should be very wary of extending.

One of the reasons has been obliquely mentioned by my noble friend Lord Brentford. In such circumstances it is very difficult to know whether somebody is telling the truth—in other words, whether the employer is giving a genuine reason for refusal. If we can somehow avoid extending the compulsion to take on people and still achieve our objective, it would be better to do so.

The noble Lord has made a distinction and he is entitled to an answer to it. Meanwhile I hope that to some extent he will be consoled by what we find on page 16 of the Bill, in Schedule 4, paragraph 11(4). Admittedly that provision applies to people who have become employed, but, strangely enough, they have to be shown the notice before they become employed. To that extent, it overlaps with what the noble Lord has in mind. It is very clear and strong. It lets a potential shopworker know his rights in relation to Sunday work and makes provision, so long as he has had that warning, for him to refuse to work on Sundays without being penalised if that is what he wants to do. Naturally, I shall be interested to hear what my noble friend on the Front Bench says about it, but if we can achieve the main purpose without extending the law of compulsory employment, we would be wise to do so.

5 p.m.

Lord Campbell of Alloway

I should like briefly to support what my noble friend Lord Renton said about discrimination in employment, which I understand to be the evil with which the noble Lord, Lord McCarthy, is concerned. As my noble friend said, the amendment raises real difficulties in extending this compartment of the law.

Apart from that, the amendment seems to impose over-restrictions on the employer—although that may not be the intention—because, as I read it, the amendment would limit the right of employers to recruit workers able to fulfil week-time work and Sunday work. It would impose unreasonable restrictions on an employer if he were to reject an application which indicated that the applicant was unable or unwilling to perform the work required.

Furthermore, I do not know, but I suppose that if we are to have Sunday working for shopworkers—and obviously we are —some employers will recruit for Sunday work only. If they are entitled to do that, how would that entitlement be affected by the amendment? The amendment imposes an artificial fetter on the employer which, as I see it, serves no useful purpose and does not really strike down any particular evil.

Lord Rochester

As the noble Lord, Lord McCarthy, said, the principle is already accepted that neither existing nor future employees should suffer detriment for refusing to work on Sundays. We are all agreed on that. I agree with the noble Lord that if the principle is right for those workers, it should also be right for job applicants.

It may be argued—indeed, it has been argued—that the amendment is unworkable, but that was not the opinion of the Shopping Hours Reform Council, on whose views the Bill is largely based. In the Government's White Paper which was published in July 1993, it was acknowledged that the council had suggested that people who were unwilling to work on Sunday should not be discriminated against when applying for jobs. I understand that to be the case. If I am wrong, I shall no doubt be told when the Minister replies.

Another point of some significance, I suggest, is that it was this Government who introduced the principle that people should not be denied employment because they were or were not trade union members. I see no reason why the same principle should not be applied in this instance.

As I understand the thinking underlying the Bill, it is that Sunday working should be voluntary and that people should have a free choice in the matter. However, I think that as more and more shops open on a Sunday, retailers will increasingly want to ensure that they can staff their shops on that day and a tendency to look for more recruits who are willing to work on a Sunday will grow. In practice, that will mean that Sunday working will become the norm for future job applicants. I ask whether that is what the Committee really wants.

In response to the noble Lord, Lord Renton, I stress that, as I understand it, the amendment does not seek to oblige an employer to recruit someone who is unwilling to work on a Sunday but to prevent an employer from using an objection to Sunday working as a reason for not taking on someone. I support that principle and hope that the Committee will do so also.

Lord Boyd-Carpenter

An exaggerated importance seems to be being given to the whole question of willingness to work on Sundays. The discussion so far has almost been on the basis that because shops are now to be allowed to open on a Sunday, a whole new question of Sunday working has arisen. But the Committee will know that many millions of people throughout the country regularly work on Sundays now and that we do not encounter in respect of them any of the difficulties which it has been sought to emphasise.

I speak with some direct knowledge of this. As some of your Lordships may remember, I was the chairman of a cement making company for a good many years and, as cement making is a continuous process industry, people work regularly on Sundays. As I have already told your Lordships, my only problem as chairman was when workers were aggrieved that the foreman did not allocate them to work on a Sunday, for which there was a 50 per cent. premium on their wages. They argued to me that the foreman must have had a grouse or grievance against them because he refused to put them on to Sunday work. Indeed, the emphasis throughout was that Sunday working, being better paid, was an attractive proposition. I recall no example of people objecting to being allocated to it.

As I have said, many millions of people in the continuous process industries (not only in cement making but also in the steel industry) and many others who work in transport, the public services and for the airlines are regularly allocated to work on a Sunday, but one does not hear—I, for one, have certainly not heard —any complaints or difficulties arising on the basis that has been advanced today: that making people work on a Sunday is a terrible grievance and may be a ground for their refusing or being refused employment. Therefore, I suggest to the Committee that the fairly drastic proposals contained in the amendment are wholly unnecessary. All experience of Sunday working shows that.

Lord Henley

Perhaps I may assist my noble friend on that point. He may he interested to know that already something in the order of one in four of all workers —not shopworkers—usually or sometimes works on a Sunday. I think that that very much reinforces the point that my noble friend was making and is something of which the Committee should take note.

Perhaps I may also deal with another point that was made by my noble friend Lord Brentford when he said that he believed that the Bill could be described as an encouragement to tell a lie. I do not believe that to be the case. That is certainly why we argued for three months and not one month when we dealt in Committee with Amendment No. 30. I believe that that is one of the reasons why the Committee decided, as it did by a convincing majority, to reject that amendment.

Lord McCarthy

Can the Minister tell me why three months makes you not lie, but one month makes you lie? I should have thought that the longer the period, the more chances that one is lying.

Lord Henley

I am terribly sorry, but I should have thought that it was quite obvious that the shorter the period, the greater the temptation. It seems quite obvious that if there is only a month to get by, one is more likely, as it were, to try it on. That is the point that my noble friend was arguing and that is the point that the Committee, I believe, took into consideration in rejecting that particular amendment, which we rejected some time earlier this afternoon.

I go on to deal with the noble Lord's amendment. I understand that he is worried that for those who do not wish to work on Sundays the protections offered by the schedule will gradually be eroded. There is a belief that employers will simply ask all prospective employees whether they are prepared to work on Sundays and reject all applicants who decline to do so, whether or not that is relevant to the particular job on offer. The amendment seeks to provide that it should be unlawful for an employer to discriminate against an applicant for a job as a shopworker on the grounds that he or she objects to working on Sundays. I can assure my noble friend Lord Campbell that the amendment is drafted in such a way that if an employer seeks only people to work on a Sunday, they will still be covered by that provision. I think my noble friend Lord Campbell would agree that that somewhat unnecessary restriction would lead to some rather extraordinary claims of unfair discrimination.

I hope that I can illustrate to the Committee that the amendment is not defensible in principle. It would be largely unworkable in practice and fail to offer any meaningful degree of protection beyond that already provided by Schedule 4. The schedule already provides that those shopworkers who do not wish to work on Sundays need not do so. Even shopworkers who accept a commitment to Sunday working will have the opportunity to withdraw from that commitment, subject only to a three-month notice requirement. That opt out recognises that someone may enter into an obligation in good faith and his circumstances may change. I believe that the noble Lord, Lord McCarthy, mentioned that the person might be having a baby. One normally has at least three months' notice of that particular event—certainly in my experience! The opt-out is not an oscillating right. It can be exercised more than once at any time subject to notice. The provisions in Schedule 4 have been designed to strike a reasonable balance between protecting the interests of retail employees and those of their employers. I believe that the proposed amendment would place a wholly unreasonable requirement on employers whilst doing very little to advance the interests of shopworkers.

If an employer decides to open his shop on Sundays, I believe that the availability of his staff to work on those days is a legitimate business interest. A limitation on the ability of an employer to establish at the recruitment stage whether an individual is able to undertake the full range of lawful duties required cannot be acceptable. To deny the employer the freedom to select the workers who are willing to do the work that is to be done will create considerable scope for abuse. Any unsuccessful applicant would be able to claim that his or her failure to get a particular job was because he or she objected to working on a Sunday. As drafted, such a right would apply also to applicants for Sunday-only vacancies.

It is important not to forget that shops will not be obliged to open on Sundays. Those shops that choose to do so are unlikely to require all of their employees to work on Sundays. Flexible working patterns are already well established in the retail industry, with many employers relying on part-time and shift workers to cover peak periods of demand. It is therefore unnecessary to provide the proposed protection to ensure that retail jobs remain available to those who do not wish to work on a Sunday.

The noble Lord also drew a parallel between unfair discrimination at recruitment against those who chose to exercise their right to refuse to do shopwork on a Sunday and unfair discrimination on the grounds of either race or sex. My noble friend Lord Renton went on to mention the quota in disability grants, although I believe that my noble friend made it quite clear that he did not believe it right to extend it to these particular cases. I also believe that the parallel drawn by the noble Lord, Lord McCarthy, is a mistaken one. Discrimination on matters of principle, such as sex and race, is entirely separate. Protection against unfair discrimination in employment is provided on the basis that, with the very minor exceptions which exist in the two Acts that deal with those two particular matters, a person's sex or racial background is simply not relevant to the requirements of the job. They are therefore not considerations that should be taken into account by an employer when recruiting staff. We believe that discrimination on the grounds of sex or race is not only wholly morally wrong but, by potentially excluding the best person for the job, is also economically inefficient.

By contrast, these amendments attempt to force employers to ignore a consideration which is a legitimate one in deciding who is the best person for a job which includes Sunday working. The people who would be protected would be the very people who, by their own admission, would be unable to undertake the work required. There could be nothing more clearly designed to bring the law into disrepute than if it required employers to take on workers who had made it plain that they would not undertake the duties required; nor do I believe that there is any indirect discrimination in a three-month notice requirement or any of the other provisions of Schedule 4.

Finally, the amendment places the burden of proof on the employer to show that the reason for his rejection of the applicant was not the applicant's refusal to work on Sundays. That goes too far. It would mean that any shopworker whose application for a job was turned down for any reason whatever would be able to complain to a tribunal in the knowledge that the employer had to disprove the presumption that he or she was rejected for refusing Sunday work. Surely, that cannot be sensible. It would place an unnecessary and indefensible burden both on employers and the operation of the industrial tribunal system.

I believe that for those reasons the Committee should reject this amendment, but I hope that in the meantime the noble Lord will feel able to withdraw his amendment.

5.15 p.m.

Lord McCarthy

I should just like to say a few words about what people other than the Minister have said. On the whole, he has not said very much. He has repeated the arguments used in another place. He has said that it is unworkable, meaningless and open to possible abuse. I have dealt with all of those matters. The only matter that he dug out was the suggestion that the sex and race comparison was a mistaken and invalid one because sex and race were not relevant to the employment. If we say that Sunday working is voluntary we say that it is not relevant to the employment. The moment that we say it is relevant we say that the employer is perfectly entitled to say, "Yes, it is relevant. You will not work on Sunday and I will not engage you", and so there are no rights at all. If we are to make anything of all the statements that the Minister, the noble Earl and the Government have made in another place about wanting to do something about new entrants coming into the job, it must be done at the point of entry. We must say that at the point of entry it will not be relevant for the employer to say, "You will not work on Sunday and so you cannot take the job".

The noble Viscount, Lord Brentford, said that one would have to lie. One would have to lie but one would very soon be found out. Whether it was one or three months, one would have to run the gauntlet of the three months in which the employer could say, "You told me that you would work on Sundays. Now you will not work on Sunday, but you shall work on Sunday". I would argue that if there was a refusal, an unfair dismissal claim would not be possible because the employee had lied at the point of entry.

The noble Lord, Lord Renton, said that one could go to the explanatory part of Schedule 11. That is perfectly right. I am very glad that it is there. But all that does is tell the individual worker of his very limited three-month opt-out right. My separate point is that that is of no use to him in this context. The noble Lord, Lord Campbell of Alloway, said that there was a limited right to recruit workers in certain other cases, and he did not see why it should apply. In reply to another noble Lord I tried to argue today that unless there was a right of the sort that I suggested to opt out at that point it would not be voluntary.

I come to the points raised by the noble Lord, Lord Boyd-Carpenter. He underestimated himself. On many occasions, including Second Reading and Committee, the noble Lord told the story about the cement firm. The trouble with that story is that it is an own goal. He kept telling us that when he was chairman of that company there was a need for the premia payments because, I suppose, of something to do with the wages. The only way they could make a living was to work on Sunday. That is precisely our point. Most people will want to work on Sunday. Therefore one cannot use the argument that the Government use consistently, that it will put the employer in a difficult position. It will not, because most people will want to work on Sunday.

Lord Boyd-Carpenter

Is the noble Lord really saying that because someone is induced by a premium to work on Sundays that that is any evidence that he is paid inadequately otherwise or merely that he is a sensible hard-working man who wants to earn as much as he can?

Lord McCarthy

What I am saying is that there are obviously many inducements which the noble Lord tells us that he has used in the past to ensure that the employer gets the right number of people to work on Sundays, and that even if we had the amendment we would not have the problem that the Government go on about. Therefore I do not see why I should take the amendment away. I want to press it to a Division.

5.20 p.m.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 93; Not-Contents, 142.

Division No. 2
CONTENTS
Airedale, L.	Listowel, E.
Archer of Sandwell, L.	Liverpool, Bp.
Ardwick, L.	Llewelyn-Davies of Hastoe, B.
Aylestone, L.	Lockwood, B.
Beaumont of Whitley, L.	Longford, E.
Bonham-Carter, L.	Lovell-Davis, L.
Boston of Faversham, L.	Mackie of Benshie, L.
Bottomley, L.	Mallalieu, B.
Bruce of Donington, L.	Mason of Barnsley, L.
Callaghan of Cardiff, L.	McCarthy, L.
Carmichael of Kelvingrove, L.	McIntosh of Haringey, L.
Carter, L.	Merlyn-Rees, L.
Castle of Blackburn, B.	Milner of Leeds, L.
Cledwyn of Penrhos, L.	Mishcon, L.
Clinton-Davis, L.	Morris of Castle Morris, L.
Cocks of Hartcliffe, L.	[Teller.]
Darcy (de Knayth), B.	Mulley, L.
David, B.	Nicol, B.
Dean of Beswick, L.	Ogmore, L.
Diamond, L.	Pitt of Hampstead, L.
Donaldson of Kingsbridge, L.	Plant of Highfield, L.
Dormand of Easington, L.	Prys-Davies, L.
Eatwell, L.	Redesdale, L.
Ewing of Kirkford, L.	Richard, L.
Falkender, B.	Robson of Kiddington, B.
Falkland, V.	Rochester, L.
Gallacher, L.	Rodgers of Quarry Bank, L.
Geraint, L.	Russell, E.
Gould of Potternewton, B.	Sefton of Garston, L.
Graham of Edmonton, L.	Serota, B.
[Teller.]	Shepherd, L.
Gregson, L.	St. Albans, Bp.
Grey, E.	Stallard, L.
Hanworth, V.	Stedman, B.
Haskel, L.	Stoddart of Swindon, L.
Hilton of Eggardon, B.	Strabolgi, L.
Hollis of Heigham, B.	Taylor of Blackburn, L.
Holme of Cheltenham, L.	Taylor of Gryfe, L.
Hooson, L.	Thomson of Monifieth, L.
Howell, L	Tordoff, L.
Howie of Troon, L.	Turner of Camden, B.
Jacques, L.	Wallace of Coslany, L.
Jay of Paddington, B.	Walpole, L.
Jay, L.	White, B.
Jenkins of Hillhead, L.	Wigoder, L.
Jenkins of Putney, L.	Williams of Elvel, L.
Kilbracken, L.	Williams of Mostyn, L.
Lawrence, L.
NOT-CONTENTS
Addison, V.	Bruntisfield, L.
Ailesbury, M.	Burnham, L.
Alexander of Tunis, E.	Cadman, L.
Allenby of Megiddo, V.	Campbell of Alloway, L.
Annaly, L.	Carnegy of Lour, B.
Archer of Weston-Super-Mare, L.	Carnock, L.
Arran, E.	Chalker of Wallasey, B.
Ashbourne, L.	Chelmsford, V.
Astor, V.	Chorley, L.
Attlee, E.	Clanwilliam, E.
Barber of Tewkesbury, L.	Clark of Kempston, L.
Blatch, B.	Clinton, L.
Blyth, L.	Courtown, E.
Boardman, L.	Cox, B.
Borthwick, L.	Craigavon, V.
Boyd-Carpenter, L.	Crathorne, L.
Brabazon of Tara, L.	Cross, V.
Bridgeman, V.	Cumberlege, B.
Brookes, L.	Dacre of Glanton, L.
Brougham and Vaux, L.	Davidson, V.

Dean of Harptree, L.	Miller of Hendon, B.
Denton of Wakefield, B.	Milverton, L.
Dixon-Smith, L.	Monson, L.
Downshire, M.	Morris, L.
Dundonald, E.	Mottistone, L.
Eden of Winton, L.	Mountevans, L.
Elles, B.	Mowbray and Stourton, L.
Elliott of Morpeth, L.	Munster, E.
Elton, L.	Mutton of Lindisfarne, L.
Faithfull, B.	Napier and Ettrick, L.
Fanshawe of Richmond, L.	Nelson, E.
Ferrers, E.	Newall, L.
Flather, B.	Norfolk, D.
Fraser of Carmyllie, L.	Onslow, E.
Gainsborough, E.	Oppenheim-Barnes, B.
Gardner of Parkes, B.	Oxfuird, V.
Geddes, L.	Park of Monmouth, B.
Goschen, V.	Peel, E.
Greenway, L.	Pender, L.
Gridley, L.	Quinton, L.
Halsbury, E.	Rankeillour, L.
Harmar-Nicholls, L.	Rees, L.
Harris of High Cross, L.	Renton, L.
Harrowby, E.	Renwick, L.
Hayhoe, L.	Romney, E.
Henley, L.	Russell of Liverpool, L.
Holderness, L.	Saltoun of Abernethy, Ly.
HolmPatrick, L.	Seccombe, B.
Hooper, B.	Shannon, E.
Howe, E.	Simon of Glaisdale, L.
Hylton-Foster, B.	Skelmersdale, L.
Jenkin of Roding, L.	St. Davids, V.
Kenyon, L.	Stewartby, L.
Killearn, L.	Strathcarron, L.
Kimball, L.	Strathclyde, L.
Lauderdale, E.	Strathcona and Mount Royal, L.
Leigh, L.	Strathmore and Kinghorne, E.
Liverpool, E.	[Teller]
Long, V.	Sudeley, L.
Lucas of Chilworth, L.	Swansea, L.
Lucas, L.	Swinton, E.
Lyell, L.	Tebbit, L.
Mackay of Ardbrecknish, L.	Thomas of Gwydir, L.
Mackay of Clashfern, L.[Lord	Torrington, V.
Chancellor.]	Trefgarne, L.
Macleod of Borve, B.	Trumpington, B.
Manchester, D.	Tugendhat, L.
Manton, L.	Ullswater, V.[Teller.]
Marlesford, L.	Vivian, L.
Massereene and Ferrard, V.	Wakeham, L.[Lord Privy Seal.]
Merrivale, L.	Wise, L.
Mersey, V.	Wolfson, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.28p.m.

Baroness Turner of Camden moved Amendment No. 33: Page 15, line 16, at end insert: ("(9A) In any proceedings falling within paragraph 9 above it shall be for the employer to prove that the reason for the dismissal (or if more than one, the principal reason) was not an actual or proposed refusal to do shop work on Sunday or on a particular Sunday.").

The noble Baroness said: This is a further attempt to strengthen the protection afforded to workers dismissed for refusing to work on Sundays. It deals with the burden of proof, and it sets out clearly, without any ambiguity, that it shall be for the employer to prove that the reason for the dismissal, or, if more than one, the principal reason, was not an actual or proposed refusal to work on Sundays or a particular Sunday.

The Minister may tell the Committee that the amendment is unnecessary because the burden of proof is on the employer anyway. However, I do not believe that it is all clear cut. My information is that it is based upon an industrial tribunal decision which may not be regarded as a precedent in all cases. But there is a more particular reason in the Bill to make it clear that that is the case. The Bill seeks to give protection to all employees irrespective of the length or period of service. In other words, the two-year period applying in regard to other kinds of employee protection has been abandoned in the Bill. My advice is that, even if there is some protection for employees with two years' service or more, there would appear to be a difficulty relating to employees with less than two years' qualifying service at the time of dismissal.

I am told that analogous case law relating to dismissal for trade union related reasons indicates that such employees may face the normal civil burden of proving their case on the balance of probabilities. I am also told that Schedule 4 does not really address this problem. If my advice is correct—and I see no reason why it is not because it was given by two extremely eminent academic lawyers—clearly something ought to be done about it, in particular as regards short service employees because short service is common in the retail industry.

In any event, the presence of such a clause in the Bill will surely give a signal to employers that they had better be sure of their ground when getting rid of employees. They will have to prove that the reason for the dismissal is for something other than the refusal to undertake Sunday work. I beg to move.

5.30 p.m.

Baroness Jay of Paddington

I support the amendment. It is important that it is put into the Bill in order to strengthen the pro-active nature of the employer's position in dismissing anyone on any particular ground. The arguments which arise in relation to the amendment are a mirror image of those which my noble friend Lord McCarthy presented so eloquently in respect of the previous amendment.

When one is trying to encourage the culture of voluntarism in employment on Sundays it is important that it is reinforced in a statutory way whenever possible. Considerable publicity has been given to cases in which there was a suspicion that workers were dismissed because of their refusal to work on Sundays. That has been difficult to prove and therefore there has grown up a culture of suspicion rather than a culture of voluntarism in respect of certain employment and the policies of certain shops. My noble friend's amendment would change the nature of that atmosphere.

Viscount Brentford

I too endorse the amendment. I am happy that it supports the vulnerable members of society, which shopworkers are. There is a frequent turnover, many shopworkers working for fewer than two years in one job. While I am extremely appreciative of all the employment protection contained in the Bill —Schedule 4 gives a lot of protection—it is unlikely to be as effective as it might be because of the burden of proof to show that the principal reason for dismissal was Sunday related. It is difficult to overcome that burden because an employer is unlikely to make it easy for an employee by admitting that a Sunday related reason forms the basis of a dismissal.

Paragraph 7 of the schedule provides protection by means of the cross-reference to the Employment Protection (Consolidation) Act 1978. I understand that the Government hang the burden of proof on that. However, it is uncertain that the burden of proof will rest on the employer, in particular in respect of those employed for less than two years. That appears to be the reading of the law cases on this and similar subjects.

Employees who have the necessary two years' continuity of employment may—but it is not certain —be able to shift the burden on to the employer under the terms of the 1978 Act. However, the burden of proving unfair dismissal for those with less than two years' continuity of service almost certainly rests on the employee. Therefore, I support the amendment, which will help to clarify the law and support the employees.

Lord Rochester

On Second Reading I said that it would take months for an employee to prove before an industrial tribunal and without legal aid that the real reason why he was dismissed or not promoted was that he was unwilling to work on Sundays and would produce only meagre compensation.

In reply to the debate, the noble Baroness, Lady Trumpington —who I am glad to see in her place—stated: It is a misconception that the burden of proof is on the employee. The burden is on the employer to show the reason for dismissal".—[Official Report, 8/3/94; col. 1417.] Like the noble Baroness, Lady Turner, and others who have spoken, I am anxious about the matter. I shall be glad if the Minister will confirm that the reference in paragraph 7 of Schedule 4 to Part V of the 1978 Act means that in all cases it will be for the employer to show that the reason for dismissal was not that the employee refused to work on Sundays. The noble Baroness, Lady Turner, has expressed doubt about whether it will apply to all cases.

I too suggest that it would be as well for such a statement to be endorsed by including in the Bill this amendment or one similar.

Lord Henley

As the noble Baroness, Lady Turner, said, the matter raised is not completely straightforward and is somewhat complicated. The amendment addresses a technical point and I fear that I shall have to provide a detailed explanation as to why I believe that it is misconceived.

It might be helpful to the Committee if I start by explaining how the protection against unfair dismissal provided in the schedule operates. I believe that the amendment should refer to paragraph 7 and not to paragraph 9. I make no objection to that. I believe it to be a mere drafting error and that the noble Baroness intended to table the amendment relating to paragraph 7. I merely point that out to her. Paragraph 7 of Schedule 4 provides protected and opted-out shopworkers with protection against being dismissed for refusing to work on a Sunday. It achieves this by cross-reference to the Employment Protection (Consolidation) Act 1978 and provides that such dismissal shall be unfair for the purposes of Part V of that Act.

Precisely what is required of the individual shopworker by way of burden of proof will vary according to how long he has worked for the employer and whether, therefore, he fulfils the qualifying conditions—that is, two years' service—for making a complaint under the general unfair dismissal provisions.

If he does not, in order to demonstrate that the case should be heard under the Schedule 4 provisions, which do not require any qualifying period of service, the shopworker will need to show that there are grounds for supposing that he was dismissed for refusing to work on Sundays. We do not believe that that is a difficult hurdle to surmount. All the worker has to do is to show a prima facie case. Once he has done that the tribunal will proceed to hear and determine the claim on its merits.

While it is for the employee to show that he has reason to believe that he has been dismissed for a reason relating to the refusal of Sunday work, Section 57 of the 1978 Act specifically provides that it is for the employer to show the reason for the dismissal and that he acted reasonably in treating it as a reason for dismissal. Of course, I accept that the employer who has dismissed an employee for a reason which makes the dismissal automatically unfair may attempt to mislead the tribunal in this respect. However, I do not accept the possible pessimistic assessment about the ability of a tribunal to determine the true facts should an employer attempt to mislead it as to the real motive for his actions.

Industrial tribunals are a long-established and well accepted forum for resolving employment related disputes. They comprise a legally qualified chairman and normally two lay members with extensive practical experience of employee relations, one drawn from each side of industry. They have considerable experience in determining the truth where the two parties disagree as to the reason for the dismissal. It is simply naive to suppose that tribunals are so green that an employer will so easily be able to pull the wool over their eyes.

The general effect of the amendment is that whenever a shopworker complains of unfair dismissal to an industrial tribunal, the employer has to disprove the presumption that he or she was dismissed for refusing to work on Sundays, whatever the real reason for the dismissal. That has some very curious results indeed; for example, the presumption would apply, and would have to be disproved by the employer, even where the dismissed shopworker had always agreed to do Sunday work and had always done it when asked.

I have already explained that any shopworker who has any real reason for thinking he or she was dismissed for refusing to work on Sundays does not need the assistance of this amendment: I believe that it will be of assistance only to mischief makers. It would therefore place an unnecessary burden on employers and the operation of the tribunal system to no good purpose.

I do not believe that the amendment offers any real practical assistance to shopworkers who do not have the qualifying period. There is also no legal reason for it. The amendment is circular. The tribunal will be considering whether dismissal is unfair under paragraph 7 of the schedule only if it has already accepted that there are some grounds for thinking that the worker was dismissed for refusing to work on Sundays. Once it has reached that stage, the burden is very clearly on the employer to show the reason for the dismissal.

I hope that that somewhat complicated exposition has explained the position as regards the burden of proof. I hope that I have reassured the Committee that the arrangements do not place a shopworker at a disadvantage. On that basis I hope that I may have persuaded the noble Baroness, Lady Turner, not to press the amendment.

Lord McCarthy

We have been round this before and I do not know that we have much hope of persuading the Government in this regard. The problem goes back to 1980, as we have said on many occasions. In 1978, there were two stages and in both stages the burden of proof was firmly on the employer, who had to show that he had a lawful reason and that it was a sufficient reason bearing in mind the merits and equity of the case for dismissal. That was quite clear.

In 1980, in the first Employment Act introduced by the present Government the second limb was changed so that it was still the employer's problem to prove a lawful reason, but at that point the burden of proof was neutralised because the tribunal would decide whether it was a sufficient reason, taking into account the size of the firm and various other factors provided for in the legislation.

We said at that time, and we have said ever since, that that change in connection with the burden of proof—and here we are talking about ordinary individuals who have a right to protection against unfair dismissal and not the two-year rule—was unfair. It was particularly unfair as the tribunals began to develop their notion that they would take as unfair only those matters which were beyond reasonable decisions of management. They said that management had a broad brush approach in deciding what was reasonable. We said that that meant, in effect, that the burden of proof was shifting from the 1978 position to a situation where increasingly workers had to prove that, once the employer had established that he had a lawful reason, there was sufficient reason for treating it as the basis for dismissal. Therefore, we are not satisfied with the general situation.

I turn now to the two-year rule. The Minister told us in very clear terms—and I do not believe that the Government have said it quite as clearly before—that in the first instance under the two-year rule the worker has to establish a prima facie case that he has been dismissed on grounds of sex, race or this new right which we are creating; and that puts the burden of proof on the worker. He says that only when the worker has established that does it become the responsibility of the employer to prove that it was a lawful reason.

However, one must then go on to ask what is the reason which the employer gives. The difficulty is that, unless there is an ordinary tribunal situation with every possible unfair dismissal argument before the tribunal, we find that the employer can put forward almost any argument. He can say that he did not dismiss on grounds of sex, race or because an employee would not work on a Sunday, but because the work was not satisfactory. The tribunal is then limited to the extent to which it can examine that argument because there is no right to be unfairly dismissed on that basis.

Therefore, we have anxieties about both the general position and the position under the two-year rule. However, we have put forward those anxieties on many occasions and I do not suppose that the Government will take any notice of them on this occasion. But that is the situation as we see it.

5.45 p.m.

Lord Henley

I am terribly sorry but I think that the noble Lord is making a considerable mountain out of a very small molehill. As I explained, it is only a matter of establishing a prima facie case. As I made clear, I do not believe that that is a difficult hurdle for an employee to surmount. Thereafter, as the noble Lord agreed, it is for the employer to establish his case. We are merely stating that an employee must establish a prima facie case, and I do not believe that that is the insurmountable hurdle, which the noble Lord implies it to be.

Baroness Turner of Camden

I am disappointed, although not surprised, by the Minister's response. I am prepared to accept that the amendment should refer to paragraph 7 rather than paragraph 9, and I shall look again at that before Report stage. I do not intend to divide the Committee on the matter this afternoon, but I wish to return to it on Report.

Quite frankly, I do not accept what the Minister said about it not being a difficult burden to place on employees. It is often an extremely difficult burden because the employer is unlikely to make it easy on the employee by admitting that a Sunday related reason formed the basis for dismissal. As I said earlier, in analogous cases concerning dismissal for trade union related reasons or on grounds of sexual or racial discrimination, employees have often had great difficulty in establishing the reason for their dismissal. According to my advice, protracted litigation and appeals, often resulting in the overturning of industrial tribunal findings, have been quite common.

It is not naive to imagine that industrial tribunals may have difficulty in ascertaining the precise reason, for, after all, there is no right to legal aid to go before an industrial tribunal. If employees are not represented either by their union or a legal representative, the possibility of their winning is greatly reduced. If one looks at the results of industrial tribunal cases over the years, those people who go before an industrial tribunal without representation do not stand as much chance of winning as those who are represented. Yet we know that we are talking about a workforce which is not too well organised and which does not have a great deal of union cover. In that event, it seems to me that we are dealing with a vulnerable workforce. The only way in which those people can be protected is by Parliament providing the kind of legislation which will make it easy for them to insist upon their rights.

As I said earlier, I shall not press the amendment this afternoon. I shall look to see whether the amendment is drafted correctly. I am not at all satisfied by the Minister's response and I shall certainly return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Baroness Turner of Camden moved Amendment No. 35: Page 16, line 3, at end insert: ("(6A) Where an employee who refuses an offer to do Sunday work loses in consequence thereof part or all of his normal working hours, the employer shall use his best endeavours to offer alternative hours of work during the weekday periods of the month in which the refusal was effected.").

The noble Baroness said: This amendment seeks to address the situation in which an employee may be pressurised into working on Sundays by being told by the employer that otherwise there will be no work for him on a particular weekday or that some hours during the week are no longer available. Quite clearly, that would represent pressure since most workers count on working a full week and getting paid for it. It would be a way in which to cut pay in a sense in order to exert pressure on people who do not wish to work on a Sunday for religious or other reasons.

The amendment simply says that an employer, shall use his best endeavours". It is not a firm commitment; it simply states that he should use, his best endeavours to offer alternative hours of work during the weekday periods of the month in which the refusal was effected". I have to say that such a provision already forms part of the agreement reached between USDAW and the consortium of employers who have campaigned for the six-hour option. The clause in that agreement—and I am indebted to Tesco for this information—reads that, where an existing shop worker opts out of Sunday work the employer will use his/her best endeavours to reschedule the employee's lost working hours elsewhere subject to the needs of the business". I emphasise the last words; namely, subject to the needs of the business". The wording is not dissimilar to that contained in my amendment. As it is acceptable to a large part of the retail industry, I hope that the Government will feel that it has some merit and that they will be prepared to accept what we say this evening. In my view, it would be a great pity if we had the kind of legislation that enabled good employers to be undercut by those who are not so good. I hope therefore that the amendment will be accepted. I beg to move.

Lord Rochester

My Lords, I sympathise with the thinking underlying the amendment, but, frankly, I am doubtful as to how far it can be made effective in law. The difficulty is that the employer could always argue that he could not reasonably provide the alternative working hours required. Therefore, the employee would have to take his case to an industrial tribunal in order to gain redress, but no provision is made in the amendment for that to happen. Even if such a means were provided, I do not readily see how a tribunal could judge the matter unless it engaged in some kind of audit of the employer's staffing arrangements, which hardly seems feasible.

Having said that, presumably an employee opting out of Sunday work would be replaced by someone else who was willing to work in his stead. The substitute could then be given leave for a day in lieu of Sunday and it may then be possible for the opted-out shopworker to be offered work on such a day. It is to be hoped, as far as is practicable, that that is how the situation would be dealt with. In his response, I hope that the Minister will at least encourage employers to act in such a way or to do what they otherwise can to provide alternative weekday working hours for employees unwilling to work on Sunday.

Lord Boyd-Carpenter

The noble Lord has said very much what I intended to say. Therefore, I can spare Members of the Committee from having to hear it again. If one looks at the amendment, it is quite clear that it would be extremely difficult to enforce and that it would be merely an illusion of protection from the point of view of a shopworker. Further, if it is being seriously suggested that someone who has refused Sunday work shall be given hours which someone else would have worked during the week, that surely means that the recusant Sunday worker would be given an advantage —that is, a privilege —over someone who has not been concerned one way or the other with the question of Sunday working. That would be grossly unfair and would, most likely, entitle the displaced worker to take action against the employer. In any event, it seems to me to be a wholly unworkable proposal and one which I hope my noble friend the Minister will reject.

Lord Campbell of Alloway

As I understand it, the noble Baroness, Lady Turner, said that USDAW had negotiated an agreement along those lines.

Baroness Turner of Camden

Yes, that is correct.

Lord Campbell of Alloway

That is excellent, so far as I can see. However, can the noble Baroness say, very roughly, the percentage of shopworkers who are members; in other words, what is the scale of representation? Further, if it were in any way substantial, can the noble Baroness say how many employers are involved in the negotiations? Finally, would it not be much more satisfactory to leave it as a matter of free arrangement between a responsible union and the employers?

Earl Ferrers

During the debate on the last amendment, the noble Baroness, Lady Turner, said that we were concerned with a vulnerable group of workers and that it was only right for Parliament to protect them. Now we come to consider two further amendments the wording of which seems so reasonable. Indeed, Amendment No. 35 suggests that employers should use their, best endeavours to offer alternative hours of work", and Amendment No. 34 states that employers should have, a reasonable duty to use [their] best endeavours to replace lost hours … with alternative hours". All that sounds perfectly reasonable. However, I agree with the noble Lord, Lord Rochester, and my noble friend Lord Boyd-Carpenter. In fact, the provision would prove very difficult to carry out in practice.

I listened to and can understand the arguments put forward by the noble Baroness. However, if I may say so, I found them unpersuasive. The noble Baroness referred to the voluntary commitment that was given by the employers who support the option of the Shopping Hours Reform Council. The argument is that a statutory requirement must, therefore, be entirely reasonable.

It is, however, one thing for large retailers to commit themselves voluntarily to use their best endeavours to offer alternative weekday working to employees who refuse to work on Sunday. It is quite another thing to impose such a requirement as a statutory duty on all retailers, irrespective of the size of their workforce or their particular circumstances.

I have no doubt that many employers will do their best to find alternative weekday work for their employees who do not wish to work on Sundays; indeed, I am sure that they will do so. But, surely that is a matter for employers to decide —and not a matter for Parliament to require. It is plain common sense that an employer needs freedom to organise his staffing requirements as he judges best will meet the specific needs of his particular business; otherwise, there may be no business and no jobs either.

I am sure that Members of the Committee will appreciate that there is a limit to the working hours which are available within the weekday periods in a working month. The result of the proposal is that it may often only be possible to find extra working hours, for those who have stopped working on Sundays, by reducing the hours which are worked by those who do not work on Sunday and who have never agreed to work on Sundays; or by reducing the weekday hours of those who are content to continue to work on Sundays. Those employees deserve our consideration every bit as much as employees who have opted out of Sunday working. I hope that Members of the Committee will agree that it would be quite unfair to penalise those employees in such a way.

The Schedule 4 employment provisions, which allow shopworkers to opt out of a contractual term requiring Sunday working, are generous. Indeed, they represent a significant departure from the normal position that contractual terms, once agreed, are binding on both parties. But, they have been provided because the Government accept that no shopworker should be obliged to work on Sundays against his or her will.

However, to place an employer under a statutory obligation to use his best endeavours to provide alternative hours of work during the weekday period, would extend that generosity beyond what is reasonable. It would be absurd, for example, to make an employer find additional work for an employee who came to work on Sunday only but who then decided that he did not like it and wanted to stop doing it. I can see no reason that there should be any obligation for an employer to try to find extra hours of work during the week for that person, over and above the requirements or wishes of those other people who are employed by him. For example, a shopworker to whom these amendments applied, including a Sunday-only worker, would have first refusal of any work which became available on other days. I agree with my noble friend Lord Boyd-Carpenter that that is unreasonable. That shopworker would be given priority over all other workers, who may themselves wish to work the available hours during the week, regardless of his or her experience or ability.

It is unlikely that businesses will flourish or that new jobs will be created when employers are prevented, without good cause, from selecting the best people for the work available. Such a shopworker would also have priority over other employees whose personal circumstances might otherwise entitle them to first claim on the available work, either because they are disabled, for example, or because they are supporting a sick relative. Such a shopworker as we are discussing would also have priority over workers facing redundancy. Therefore the amendment would give enormous privileges to those people who decide they do not wish to work on Sundays.

The grounds for being granted such exclusive treatment would simply be that the employee had decided that he no longer wished to work on Sundays. I have no doubt that those shopworkers who would be privileged under this amendment would be happy about that situation. However, I doubt whether the vast majority of other shopworkers would feel that way, and frankly I do not blame them. I hope that the noble Baroness will see the force of that argument and will realise that it would be inappropriate to include this provision in the Bill.

6 p.m.

Baroness Turner of Camden

I thank the Minister for his explanation of the Government's position which, he will not be surprised to learn, does not particularly appeal to me. I had thought that we had drafted a reasonable amendment. All that the employer has to do is to use his best endeavours. Indeed the agreement which USDAW has reached states that this provision should be subject to the needs of the business. Quite obviously an employer has to bear in mind the needs of the business when he uses his best endeavours in this regard.

Nor do I accept the argument that we are making specially generous arrangements for people who do not want to work on a Sunday. If it is true—as we have often been told in debate in this Chamber on this Bill—that there are people queuing up to work on Sundays, what is the harm in providing some kind of cover and some kind of protection for people who clearly do not want to do so either on religious, conscientious or perhaps domestic grounds? If a worker refuses to work on a Sunday, there may be good reasons for that. It seems to me that if the employer can then deny the usual range of normal working hours to an individual who is not working on Sunday, that exerts further pressure on the individual and that undermines the voluntary nature of the arrangements set out in the Bill.

I do not intend to pursue this point any further at this stage but I feel the Government's response is unsatisfactory. If the scheme set out in the Bill is really intended to be an entirely voluntary one, it must be the sort of scheme that operates in such a way that people are not put under any sort of pressure to work on Sundays. We have not yet achieved that position with this Bill in my view, but I hope that we shall do so before the Bill leaves this Chamber. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 36: Page 17, line 23, at end insert:

("Enhanced Payment for Sunday Working

. A shopworker shall be entitled to remuneration from his employer in respect of shop work undertaken on a Sunday at a rate of pay which exceeds that which he earns during his normal working hours on a weekday, or in the case of a shopworker required to work only on a Sunday, at a rate which exceeds that earned by a shopworker carrying out similar shop work for the employer during his normal working hours on a weekday. The normal rate shall be regarded as twice the hourly rate applicable on a weekday to that job; this may be varied as a result of negotiation between the parties or their representatives, but shall on no account be less than one and a half times the hourly rate applicable on a weekday to that job.").

The noble Baroness said: This is the amendment that specifies that if workers work on Sundays they should be properly paid for it. Around 2.3 million employees usually work on Sundays. I would point out that that figure is provided by the labour review of 1992. That is approximately 11 per cent. of all employees. That also means of course that 89 per cent.—in other words the greater majority—do not work on Sunday and use it as an opportunity for rest and leisure.

The six-hour option has been strongly promoted as an opportunity for families to shop together; in other words, shopping not just for necessities, but luxury shopping, or perhaps shopping for larger items such as furniture, gardening equipment, and perhaps DIY materials.

But this great majority, for whom Sunday is not a day like any other, owe their possibility of enjoyment very largely to the activities of a minority of workers who provide them with the necessary services. It has for many years been accepted that if such workers are to forgo their Sunday break, they should be compensated for it. And Sunday really is special. For most of us a day off in the week in lieu is simply not the same at all. I can myself testify to that. I have worked on Sundays and had days off in lieu and it is by no means the same thing.

The convention across large parts of the UK economy for many years has been—in both the public and private sectors—that if an employee worked on a Sunday, then he or she should be paid a premium rate, and that premium rate has normally been double time. Arrangements to provide premium rates at double time currently exist for local authorities' administrative, professional, technical and clerical grades, in the NHS for nursing staff and also for NHS ancillary staff, in the non-industrial grades in the Civil Service, and in private industry, in chemical and allied trades, parts of the clothing industry, pharmaceuticals, the glass industry and large sectors of manufacturing and engineering industry. Even without legislation a number of leading retailers pay premium rates at double time. Tesco's has assured me that it does this and has done so because it wants to attract staff to work on Sundays and wants to encourage good people to volunteer.

As I have said earlier, protection of vulnerable people must be a matter for Parliament. One of the ways in which we can protect these people is to insist in primary legislation on their being properly compensated for working when everyone else is either resting or is out enjoying leisure activities. My amendment was carefully drafted to suggest that the normal rate for Sundays should be regarded as twice the hourly rate applicable on a weekday to a particular job. However, my amendment suggests that this may be varied as a result of negotiation between the parties or their representatives but on no account should it be less than one and a half times the hourly rate applicable on a weekday to that particular job.

I am sympathetic to the amendment in the name of my noble friend Lord Stoddart of Swindon. However, I must state that I have drafted my amendment so as to cover the arguments that have been made in another place about the inability of a number of smaller shops to cope with a double time requirement. However, I should still like it to be spelt out in legislation that the normal rate for Sunday working should be double time but that it should be open to parties to negotiate the matter of paying a rate one and a half times the hourly rate for a particular job. However, I personally favour the double time option. I beg to move.

Lord Stoddart of Swindon moved, as an amendment to Amendment No. 36, Amendment No. 37:

As Amendments to Amendment 36

Line 3, after ("shopworker") insert ("and any other worker required to work on Sunday by reason of the opening of shops on Sunday arising from the provisions of this Act").

The noble Lord said: In moving Amendment No. 37, it may be for the convenience of the Committee if I speak also to Amendment No. 38. I am, of course, very much in favour of my noble friend's original amendment. I hope that I shall not repeat many of the excellent arguments which she made in favour of that amendment. I wish to build on her amendment and to draw other workers into the protection that she seeks. That is precisely what I seek to do in Amendment No. 37. We should not only be concerned with shops and their convenience and with shopworkers who are not the only employees who may be required to work on Sundays as a result of this Bill.

All sorts of other people will be required to work on Sundays who fall outside the narrow definition of a shopworker which is contained in the Bill. Shops have to be serviced and a wide spectrum of employment may be covered. For example lorry drivers, warehousemen and women, and possibly production workers and head office staff will be required to work on Sundays. Those people will not necessarily be working in a shop. Fresh food growers and their employees may be required to work on Sundays, as may bakers and contract cleaners who may well not be defined as shopworkers but as something else. Their contract of employment may not cover shop work specifically.

There are also other workers who are likely to be required to work on Sundays. For example, many local authority workers will be forced to be on duty, not only for the enforcement of this Bill when it becomes an Act but to provide services. There are some obvious categories, such as car park attendants, traffic wardens, street cleaners, police, bus workers, public health workers, trading standards officers, and no doubt many others.

While it may be true that at present many local authority workers may be covered by Sunday working agreements which give them double time, by no means all of them will be covered by such arrangements. We must remember that many local authority services in many areas are already contracted out. Many more may well be contracted out under the compulsory competitive tendering arrangements so beloved of this Government. It is a system which is bound to extend its boundaries under existing legislation. We do not need new legislation to extend those boundaries. It already exists.

The more we examine the issue the more worrying and complicated it becomes. I have mentioned the servicing of shops directly and local authority services, but as Sunday becomes an ordinary shopping day many other trades and businesses will be expected to open on Sundays. Banks and building societies immediately spring to mind. But will not people also expect post offices to be open and to be able to pay their rates and rents at the town hall or civic: offices? Then Sunday will be like any other day.

Employers will then ask why they need to pay premium rates for Sundays, and what is now so special about that day. Since in my experience employers invariably have the whip hand and since workers these days are in a very weak position, especially those in the retail trade, the Sunday premium payment could be gradually phased out not only for shopworkers but for all workers. Hence my support for the amendment and my attempt to make it even stronger and wider by my own amendments to it.

I turn now to Amendment No. 38. In my own experience Sunday work has ranked for double time. It is true that some employers pay less, but good employers have recognised the loss of amenity to employees as a result of Sunday working. They have recognised that it warrants an especially high premium payment. In other words, good employers have always recognised that Sunday is special. I appeal to all those who voted to keep Sunday special to bear that in mind when they consider this amendment.

Again, in my own experience, which has been relatively wide in the industrial relations field in a lay capacity, the payment of double time on Sunday represented a deterrent against the imposition of Sunday working by employers because Sunday was so special to workers. They could be with their families and go to church or other places if they wished to. Therefore it was a deterrent rate. Without that deterrent employers might too easily have imposed Sunday working on reluctant employees. I therefore do not believe that the generally accepted exceptional premium rate for Sunday should be watered down in any way, whether to time and a half or any other rate. Hence this amendment.

Time and a half, which is mentioned in my noble friend's amendment, has been the minimum premium payment, but it is not good enough. Time and a half is generally recognised as requisite for weekday evening or night work or Saturday work. But because Sunday has always been considered special by both employers and employees an extra premium payment has been regarded as fair and necessary—hence double time. In my view it would be dangerous to resile from that. It would affect not only shopworkers but also a wide range of other workers. I hope that the amendment will be supported.

My noble friend's amendment refers to variation of double time by negotiation. However, since shopworkers are not well organised into trade unions or in any other sense, they are particularly vulnerable and in a weak bargaining position vis-à-vis their employers, who in the retail trade hold the upper hand in negotiations. Bearing in mind the nature of the employment, those employed and the hours worked—much of it part-time, sometimes by schoolchildren and students working in holiday periods—the employer has enormous power. Shopworkers will have no real protection unless their rights are guaranteed by statute. I beg to move.

6.15 p.m.

Lord Boyd-Carpenter

The noble Lord, Lord Stoddart of Swindon, has done a most effective demolition job on his noble friend's amendment. Those of us who might have had any sympathy with that amendment when we read it now realise how very widespread and damaging its effects would be. Therefore, I am sure that Members of the Committee generally, although possibly not the noble Baroness, Lady Turner of Camden, will be indebted to the noble Lord, Lord Stoddart, for making it quite clear what a very substantial and damaging proposal the amendment of the noble Baroness amounts to.

En passant, the noble Baroness also very much understated the number of people who regularly work on Sundays. The figure that she gave probably relates only to those in scheduled employment and not to those who work as part of a public service such as the Post Office, which operates on Sunday despite what the noble Lord said, and many other public services. In fact the number of people regularly working on Sunday is certainly very substantial. The figure that I have been given is that approximately 20 per cent. of the workforce works on Sunday. I did not want to allow the figure quoted by the noble Baroness—which I am sure refers only to a limited section of Sunday workers—to pass without comment.

It is clear that the amendment of the noble Baroness would impose a considerable charge upon those people who employ workers on Sundays. It is the practice that generally a premium is paid for Sunday work. In the example which I quoted, and which seemed so to annoy the noble Lord, Lord McCarthy, of the cement industry it is the fact that a premium is paid for those who are called upon to work on Sunday. It is a general practice. However, to lay it down by statute on a substantial basis, as the amendment proposes, is quite different. It would among other things, be a somewhat inflationary step.

The amendment obviously appeals to certain elements in the trade union movement, but from the point of view of the national interest, the national economy and the proper working of the shops system on Sunday, it would be quite disastrous. I hope that the Minister will be firm in rejecting it.

Lord Brabazon of Tara

I very much support what my noble friend Lord Boyd-Carpenter said. Figures were quoted earlier by my noble friends Lord Boyd-Carpenter and Lord Henley and the noble Baroness, Lady Turner, on the number of other people who have to work on Sundays. I think in particular of the transport industries: the railways, airlines, airports, ships, ferries and all the others. So far as I understand it, they may receive a premium rate for working; they may get time-and-a-half or even double time. But nowhere is that provided for statutorily, as the amendment proposes. Therefore, why should shopworkers be treated differently in future from the hundreds of thousands of other people who already have to work on a Sunday and who would have no statutory protection such as this?

If the noble Baroness says, as she may, that she would like everyone who works on a Sunday to have statutory protection, I ask: why upset arrangements which have worked perfectly satisfactorily for many years? It could cause the inflationary pressures to which my noble friend Lord Boyd-Carpenter referred.

In addition, the amendment would be completely unenforceable if it were carried. It might be enforceable in the kind of shop to which the noble Baroness referred, which I believe was Tesco's, where perhaps there is union representation and where people know what rates are being paid for Sunday working and other working. However, in the type of shop to which I go on a Sunday such as my local newsagent, where two, three or four people work, how on earth would anyone enforce the provision in such shops? Would we not end up with exactly the same problems with small shops which the Bill attempts to solve on Sunday trading? Furthermore, surely it could lead to job losses in just those small shops if the legislation were enforced. People would say: "I am sorry, I can't afford to pay double time or even time-and-a-half. Therefore I am better off not opening at all on a Sunday". Then the job opportunity for that person is lost altogether.

The noble Lord, Lord Stoddart of Swindon, went on to quote a whole series of different people who might or might not be affected by shops being open on a Sunday. He mentioned that some local authority workers were already required to work on Sundays. They are required to do that sometimes: for example, we can see them gritting the streets in the winter on a Sunday. The noble Lord said that others would be required to work on Sundays because of the passing of the Bill. We would therefore have the extraordinary situation where one set of local authority workers was covered by statutory protection and another set was not and they could well be the same people. So for all those reasons I hope that my noble friend will firmly resist the amendment.

The Lord Bishop of Liverpool

I strongly support the amendment. The removal of minimum wage protection for shopworkers has already led to a significant reduction in pay rates. Employers who are seeing the opportunity which the lack of regulation gives them in this direction are unlikely to pay premium rates for Sunday working unless required to do so by law. Those retail traders who have reached a national agreement with USDAW (to which the noble Baroness, Lady Turner, referred) to continue premium rates of pay for Sunday work are firms of high standing. Some of them have led the campaign for the Sunday trading option. I am glad that the noble Baroness, Lady Jay, has put her name to this important amendment.

If those mainstream retailers are prepared to tighten protection in this way, why will the Government not incorporate that protection into the Bill? Those who are most vulnerable, who most need protection, do not work for those companies and do not have union support.

We have heard from a number of Members of the Committee who supported deregulation of their intentions to keep Sunday as a different day. I hope that they will support the amendment. If Sunday opening is to become more widespread, it is vital that there should be a legal requirement for shopworkers to be paid a premium rate for Sunday working. Without that, the concept of Sunday as a normal working day would quickly become accepted, with consequences for other workers.

The premium rate establishes that Sunday is different, and that is a point which again the noble Baroness. Lady Turner, and the noble Lord, Lord Stoddart, made. For those who choose to give up the special benefit of a free Sunday with their family, there is and should be a particular bonus for working on Sunday.

We have heard a great deal in both your Lordships' House and in this Committee in our debates on the Bill about freedom: the freedom of the shopper, the freedom of the companies and the freedom of those who want to work on Sunday. As in so many human situations, the freedom of the strong can be bought at the expense of the freedom of the weak. There are some shopworkers who are in a very weak bargaining position. The amendment is about offering them proper protection.

I have listened more than once to Professor Patrick Minford of Liverpool University on the value of forcing wage rates down in order to produce more jobs. I think we have heard of such beliefs from a number of Members of the Committee. But his arguments do not persuade me; and I am more greatly concerned about the huge subject of unemployment and the future of work than anything else. That is one of the most crucial questions that the world has to face. Merseyside, where I live, continues to have double the national rate of unemployment, as it has done consistently for many years. Nothing is more important. But I believe that questions about the future of work are far more profound than can begin to be solved by depressing wage rates.

I know about pricing ourselves out of the market. No doubt there need to be competitive disciplines. But that will not be a way in which Britain can become competitive with Taiwan or the Philippines. Pushing wage rates of shopworkers down will not make any serious contribution in areas of high unemployment, not least because they will offer no incentive to those on benefit, if their wage rates are so low, to believe that they can start to earn, as the great majority want to do. If part-time jobs pay very low wages, they make little or no contribution to the Exchequer, as well as providing no incentive to people to move away from benefit.

The Low Pay Network made a study of a new set of opportunities for jobs in Stirling. It was a study of 91 jobs that appeared in the jobcentre, clearly from one employer, assumed to be a new superrnarket—just the thing that we are told will make more opportunities for work. A third of the jobs offered less than £30 a week. All but 14 per cent. offered less than £50 a week. If a worker earns less than the national insurance threshold of £56 per week, then neither the worker nor the employer pays national insurance contributions and the worker pays no tax. The worker is not entitled to contributory benefits such as unemployment benefit, statutory sick pay, statutory maternity pay and the state pension. The employer gains a worker without any social security costs.

The Low Pay Network worked out the contribution to the Exchequer of these 91 jobs. We bemuse ourselves by statistics unless we say what jobs are, and I believe that every set of statistics should always say how many jobs are full-time and how many part-time. The Low Pay Network worked out the contribution to the Exchequer of the 91 jobs, assuming the higher hourly rate of pay. The total amount of tax and national insurance payable on the 91 jobs is £15 per week—a total of £781 per year from 91 jobs. The network makes the point that if the 91 jobs were translated into 28 —which it would have been—full-time equivalents on £3.44 per hour, the higher rate of the most common band, then the total amount paid by employees in tax and national insurance would be £570 per week or £29,000 or more per year.

The total amount of national insurance paid by the employer for those 91 jobs is £13.26 per week—£669 per year. If they were 28 full-time jobs, the employer's national insurance bill would be £235 a week, or £12,000 more per year. The loss to the Exchequer of having 91 part-time jobs against 28 full-time jobs is over £40,000 per year.

Some posts are necessarily part-time, and some people are helped by having part-time jobs. But the erosion of full-time jobs and of proper rates of pay is doing the economy no favours in saving, poverty, in the capacity of people to buy in the high street or in contributions to the Exchequer in helping people to cease being simply beneficiaries. We treat people as less than citizens when we regard them simply that way. A healthy community sees ail of us as members one of another and helps as many as possible to be contributors to the common good. Pushing wages down and down does not help. The premium rates for Sunday trading will help to protect low-paid workers.

6.30 p.m.

Lord McCarthy

The right reverend Prelate has answered a large part of the question which seems to puzzle the other side as to what is so exceptional about legislating for distribution for shopworkers. The answer of course lies in the fact that the Government abolished the wages councils.

If the wages councils had been there they would have had to set some premium rate for Sunday. They would have set such a rate before they were abolished, except that it was supposed to be illegal. The wages councils set overtime rates. Firms did not disappear. From the early 1970s until 12 months ago we had an increase of about 2 billion in the number of people working in distribution. Most of the time we had wages councils. It did not destroy jobs, and it would not destroy jobs now.

The noble Lord, Lord Stoddart, is right in saying that it is not so exceptional. That is the remarkable thing. If one looks at manufacture, transport, extraction, indeed at the whole public sector, one finds that double time is paid on Sunday. That is standard. The remarkable thing is that as Sunday working has crept in to distribution, it has not been followed by a similar general principle.

If we look at the evidence that we have had, there is complete chaos. The situation is absolutely bizarre. Less than double time is paid in Sainsbury's, Woolworth's, Budgen's and Gateway. Double time is paid in Tesco's. Who can say that Tesco's can afford to pay and Sainsbury's cannot? It is nonsense. One-fifth of the shops in Scotland pay no premium at all and a tenth of them pay double time. It is not the large shops that pay the premia. If one looks at the premium payments, they are not related to size or profits. No one knows what they are related to, except perhaps the ability of the employers to be relatively ruthless on Sundays. That is why they need legal regulation.

Lord Renton

I wonder whether I may dare to answer the right reverend Prelate. Like the rest of us, he is very rightly worried about unemployment. I have to tell him (as I shall later) that if this amendment were accepted it would increase unemployment. Also, the right reverend Prelate is worried about reduced wages. But the amendment is not concerned with that. I hope to show him that he can set his mind at rest on that point.

It is customary for people to be paid more on Sundays. It is very proper and acceptable that that should be so. But to have a statutory limit of 1½ up to 100 per cent. would be pretty killing for the small shops. The arguments that the noble Lord, Lord McCarthy, has just used, and the arguments that the right reverend Prelate used, related largely to what happens in the large stores. But perhaps I may explain what would happen if this amendment were accepted so far as the small shops are concerned. I have to use the information that is given to me as well as the information that I have.

Let us take the first part of this amendment: A shopworker shall be entitled to remuneration from his employer in respect of shop work undertaken on a Sunday at a rate of pay which exceeds that which he earns during his normal working hours on a weekday". It so happens that in the village where I live we have a very small village store on which all of us who live in the village, which is five miles from the nearest town, greatly depend—and where, incidentally, the old people are able to get their pensions. Quite frequently on Sundays a man and a woman come in to help who never work there on weekdays. The opening phrases in the amendment would simply not be relevant to their case, which is, I believe, quite a frequent one.

However, I should like to speak more generally. I understand that a typical local shop would be forced to shed two to three shopworkers if double wages had to be paid. That would be on top of the loss of 5,000 jobs in small shops that has already been forecast by the London Economic Survey as being a result of the Bill when it becomes law. Therefore unemployment would result.

Let us consider the effects upon a typical small shop. It has been estimated that double pay—it is only right to refer to double pay because that is what the real burden of the amendment is—would add around £4,000 a year to the wages bill of a typical small shop. That would mean that the cost would either have to be passed on to the customer in higher prices—in other words, it would be inflationary —or that the small shop would close. Small shops have had a great struggle for a long time against competition from the large stores. It is partly price competition and partly competition in the range of goods that can be supplied. Obviously, a small village store cannot be a Tesco or a Waitrose. Putting all those factors together, this amendment would have a very bad effect on employment, and it would kill the small shops. I hope that the Committee will reject it.

Lord Rochester

At Second Reading I said that people who work on Sunday should of course be properly compensated for so doing. I feared that once the large stores, willingly or reluctantly, to preserve their market share were open for six hours, it would not be long before, first, other shops and then other businesses in the high street followed suit. If that happened and Sunday became just like any other day —the noble Lord, Lord Stoddart, has already made a point on those lines—I questioned how work on Sunday could any longer be regarded as abnormal and thus warrant premium pay. I said then that the only way to make sure that that situation did not arise was to prevent large shops from opening on any except the four Sundays before Christmas. Unfortunately as I see it, the Committee did not accept that option. Now we are stuck with the consequences.

The Shopping Hours Reform Council, as I think the noble Baroness, Lady Jay, would agree, recognised the problem by stipulating in its agreement with USDAW that payment at double-time rate would continue unless there was a material change in circumstances, or words to that effect. Clearly it is with that consideration in mind that the noble Baroness, Lady Turner, provided for payment for Sunday work to be made at no less than one-and-a-half times the normal hourly weekday rate. I am tempted to support her and indeed the noble Lord, Lord Stoddart of Swindon, in his counter-proposals, if only because their amendments would have the effect of acting as a disincentive to more and more employers thinking of opening for business on Sunday.

However, we must recognise that—apart from the basic question of whether it is right for rates of pay to be prescribed by law at all—if they are to be prescribed, we must consider how they are to be enforced. The amendment makes no reference to that point. As the noble Lord, Lord Renton, said, it would be more difficult for small shops than for large stores to make payments at the minimum rate called for in the amendment of the noble Baroness, Lady Turner, and still more difficult if the second proposal of the noble Lord, Lord Stoddart of Swindon, were to take effect.

As I see it, the future of small shops is already threatened by the Bill's provision that large stores may trade on Sundays. Alas, that battle has been lost. However, we should surely think very carefully before adding to that danger by forcing small shops to shed labour or close altogether at the expense of disadvantaged people who depend on them. If the Government resist the amendments on those grounds —as no doubt they will—perhaps the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Stoddart of Swindon, will consider withdrawing the amendments at this stage with a view to seeking, on Report, to introduce more realistic amendments if they can.

Baroness Jay of Paddington

Perhaps I can briefly intervene on a question of fact relating to the Shopping Hours Reform Council and the undertakings drawn up in its agreement with USDAW. As the noble Lord, Lord Rochester, said, they were to maintain the premium payments. That is why I support that part of the amendment introduced by my noble friend Lady Turner, but there, I am afraid I part company with my noble friend Lord Stoddart of Swindon.

Perhaps I can equally briefly respond to the noble Lord, Lord Boyd-Carpenter, who seemed to suggest that if the amendment were accepted, some sort of floodgate would be opened in which there would be vast new expenditures on wages and that there may even be a threat to the national inflationary position. A survey was conducted by the SHRC which covered over 3,000 shops which, between them, employed 82,900 workers. It was found that 96 per cent. of those surveyed already received between 1.5 and 2.3 times their basic rate and the remaining 4 per cent. were in rolling agreements which covered Sunday payments with enhanced pay. All we are doing therefore is suggesting that there should be statutory enforcement of a situation that already exists.

6.45 p.m.

Lord Henley

I will come to that point in due course. Much has been said during the debate on Sunday trading, both here and in another place, about the principle of paying shopworkers a premium for working on Sundays. We believe that while employers and employees should be free to make any such arrangement on a voluntary basis—as my noble friend Lord Renton put it, that may be both customary and proper—we do not believe that a statutory obligation to do so would be either necessary or desirable.

The amendment of the noble Baroness, Lady Turner, and the amendment to that amendment in the name of the noble Lord, Lord Stoddart, seek to ensure that shopworkers who choose to work on Sundays should be paid at a higher rate for Sunday work than their weekday counterparts. It stipulates that Sunday shopworkers, including Sunday-only workers, should generally receive pay at double time for Sunday shop work. However, the amendment recognises the burden that such a requirement could place on employers, particularly on struggling enterprises. It provides that the rate for Sunday working may, by negotiation, be reduced to not less than one-and-a-half times the weekly hourly rate, but in no circumstances to less than that. Amendment No. 38 deletes even that provision and allows only statutory double time for all shopworkers in all shops of whatever shape and size.

Perhaps I can briefly deal with Amendment No. 37. The schedule is designed to protect shopworkers who, under the provisions of the Shops Act 1950, could not generally lawfully be required to work on Sunday. The schedule already goes far wider and encompasses all those who may be required to do shop work in or about a shop. There is a point, and even the noble Lord, Lord Stoddart, may accept it, at which the line must be drawn and it would not be appropriate to use this Bill to change the employment conditions of individuals who would be largely unaffected by the proposed changes to the laws governing Sunday trading.

The amendment would also create indefensible anomalies in the treatment of Sunday workers and I have little doubt that it could quickly become apparent that it would be unworkable. It would be impossible to reach a sensible adjudication in regard to what work had become necessary because of Sunday opening and what work would have to be done regardless of Sunday opening. For example, the noble Lord cited the case of the traffic warden or policeman whose job is presently carried out seven days a week. How does one calculate the additional burden caused by Sunday opening? The amendment would be a nonsense and my noble friend Lord Brabazon of Tara made that perfectly clear.

Turning to the substantive amendment, we believe that there are no persuasive arguments, be they economic, social or moral, to support the view that premium pay for shop work on a Sunday should be enshrined in legislation. It is true that some retailers who support the SHRC option for reform signalled—the noble Baroness mentioned Tesco's—their willingness to see premium rates of pay enshrined in legislation. I understand that members of the SHRC generally agreed with USDAW to continue to pay the current premium rates. However, from the figures quoted by the noble Baroness, Lady Jay, in terms of the survey of 3,000 shops and the number of people employed, the implication is that by definition all those retailers are, in the main, the larger shops employing larger numbers of people. They are not generally reflective of the entire shopping community. I am sure that the noble Baroness would be the first to accept that.

However, all those retailers have been able to exercise their own judgment regarding what rates of pay to offer for Sunday work in the light of their own specific business circumstances. That is only right and proper. In this case they agreed to continue to pay premium rates which I understand vary between one-and-a-half and two times the standard weekly rate. They found that that was the rate which their businesses could afford and which was sufficient to attract the numbers and quality of staff they required to cover Sunday opening.

It is no part of the role of Parliament to seek to impose a similar premium Sunday rate on all retailers. I appreciate that noble Lords opposite may wish to do so with their plans for a national minimum wage which, as we all know, will cost something in the order of 2 million jobs. But to do so would be to suggest that Parliament was in a better position than the parties themselves to determine what rate of pay was conducive to allow individual retail businesses to flourish, not just today in 1994, but until such time as Parliament considered it necessary to make a further assessment.

Everyone will agree that if a business is on the edge of viability—and Amendment No. 36 partially addressed this point—it is vital that the manager of that business be able to agree rates of pay which the business can afford and which employees will accept in order to protect their jobs. It would be an extraordinary negotiation if an employer, struggling to protect the livelihood of his employees, could not offer a rate of pay which he could afford because restrictive legislation would not allow it. Would his workers, faced with the loss of their livelihood, really be grateful and thankful for this provision?

There may be those who would be unpersuaded by the arguments I might put forward as spokesman for the Government. But those like my noble friend Lord Renton who have spoken in favour of the small shops sector may wish to recall what representatives of the small shopkeepers themselves have said about the effect on their viability of a statutory requirement for double pay for Sunday shopworkers. The local shops campaign group, Open, summarised the effect thus: Mandatory double pay for Sunday work will be the death knell of the small firms sector". That point was reiterated and emphasised by my noble friends Lord Brabazon of Tara and Lord Renton.

The problem of maintaining viability in the competitive world of retailing is not confined to the small shopkeeper. A big store with high overheads, a large workforce and many local competitors may also find it even more difficult to manage than a small but comfortably profitable shop. The point is that businesses themselves are best placed to judge what they can afford.

I am tempted to pursue the right reverend Prelate on his more general theme of the growth in part-time jobs and whether part-time jobs are satisfactory; but I do not think that is relevant to the argument today. What I can say is that, yes, there has been a dramatic growth in the number of part-time jobs over the past 10 or 20 years. But what the right reverend Prelate has to recognise is that many people actually want a part-time job. Many people prefer a part-time job. On our evidence, at the moment around 85 per cent. of those in part-time work are not looking for full-time work. Low pay for a part-time job and, for example, low family income cannot be equated. There are many in part-time work whose husbands or wives are in full-time work. The part-time work of the other partner is merely used to supplement family income.

Perhaps I may say a few words about wages councils, a point raised by the noble Lord, Lord McCarthy. I do not think this matter was relevant but it would be constructive for the Committee to hear that gross earnings of young people, men and women, in each of the main wages council trades have risen by some two-fifths since the Wages Act 1986 removed them from regulation by the councils. During the last Labour administration some 11 councils, covering 600,000 workers, were abolished. Studies of a number of industries affected did not reveal any general reduction in wages as a result of abolition, and workers formerly covered by the councils are now simply in the same position as other employees whose pay is settled between the employers and workers concerned in the light of their particular local circumstances.

It was suggested by the noble Lord, Lord Stoddart, and the right reverend Prelate that once Sunday trading becomes legal and Sunday working becomes more widespread, employers will no longer consider it necessary to pay premium rates for Sunday work and Sunday will be just like any other day of the week. The noble Lord further suggested that many of those who are at present willing to work on Sunday would be rather less willing once the incentive of premium pay is removed and that retail employers will then somehow force their employees into Sunday working.

There are a number of points in that analysis with which I should like to take issue. For example, outside the retail sector, Sunday working is not uncommon. Various figures have been quoted. I shall repeat the figure I quoted in response earlier to my noble friend Lord Boyd-Carpenter that something of the order of one in four of all employees at the moment regularly or occasionally works on a Sunday. Yet in the particular sector which my noble friend Lord Boyd-Carpenter mentioned, or for that matter other sectors, premium pay has not disappeared.

However, the particular point I must refute is the idea that retail employers will somehow be able to compel their employees to work on Sundays at rates of pay which they find unattractive. Quite simply, that would not be the case. The package of employment rights which the Bill provides will ensure that the decision to work on Sunday rests with the employee. If shopworkers are unwilling to work on a Sunday except for premium pay and if shops wish to open, they will have to pay higher wages to attract the staff that they need. We do not believe that a statutory requirement is therefore necessary. The provisions of Schedule 4 place shopworkers in a wholly exceptional position among the workforce. Virtually no other group has any statutory right to double time other than what they might agree. They certainly have no statutory right to extend the already exceptional provisions of Schedule 4. To include statutory double time would take that far, far beyond what any other worker has.

Lastly, I cannot accept the notion that additional pay for shopworkers is a necessary condition for maintaining the special nature of Sunday. Shopworkers will have the choice whether to work on Sunday. I cannot believe that the lure of additional money will make any difference at all to those who wish to set Sunday aside as a special day to spend with their families, to pursue their chosen leisure activities, to practise their religion or to pursue whatever activity that may make Sunday a treasured time for them. I believe that their conscience would not let them work on a Sunday. It would be a strange argument to suggest that statutory double time might ease that conscience.

We are all agreed that any shopworker should have the right to decide whether Sunday is for him or for her a special day and a time to leave thoughts of work behind. The Government have recognised that and have provided that no shopworker can be compelled to work on Sunday against his or her wishes. I hope therefore that the Committee will also agree that the statutory provision of enhanced rates of pay is neither desirable nor necessary. The law has no place in setting standard rates of pay which take no regard of an individual employer's economic circumstances. It would be wrong —quite wrong—to include a provision which could jeopardise the viability of some shops, put retail jobs at risk and would at the same time deprive some shopworkers of the right to work on Sundays at rates of pay perfectly acceptable to them as individuals. I therefore invite the Committee to reject the amendment.

Baroness Turner of Camden

I am not surprised that the Government have responded as they have to our amendment, which seeks to ensure that shopworkers have premium rates for working on a Sunday. I do not accept the argument that that should not be written into statute. We are looking at an entirely different situation as a result of the acceptance by both Houses of the six-hour option. I am not surprised that the noble Lord, Lord Boyd-Carpenter, should take the view he does. He has made it clear on a number of occasions that he is in favour of total deregulation. If we had total deregulation, in due course Sunday would not be at all special. But the majority have said that Sunday should be special and therefore the people who give up their time—their special time—ought to be compensated.

I do not accept what has been said about the possibility of it leading to fewer jobs. The evidence for that is very slender indeed. The wages councils were abolished last year. In the course of their existence there was no claim that they had led to unemployment. It was claimed that there would be more employment if there were no wages councils, but that has not happened.

Lord Henley

Unemployment has come down.

Baroness Turner of Camden

It has not happened. More employment has not been created as a result of the abolition of wages councils. The Low Pay Unit has recently produced evidence to indicate that in many areas the wages council rates that existed have been cut by a number of unscrupulous employers. That was one of the reasons why the abolition of the councils was opposed so vigorously on this side of the House when the issue was before us for discussion.

I must commend what the right reverend Prelate had to say. He is quite right. If we still had wages councils covering the retail sector they would, if they existed' in their original form, have had the job of making a decision about premium rates on Sunday. But they are no longer with us. We have a large workforce which will now be put under pressure in some instances to work on Sunday. As I have said before, we have an obligation to ensure that such people are protected. Perhaps I may now deal with the comment which I believe was made by the noble Lord, Lord Boyd-Carpenter, that my amendment was very wide. I point out to him that it is deliberately devised to fit within this Bill. It refers only to shopworkers as defined in the Bill. It is the amendment of my noble friend Lord Stoddart which widens the issue way beyond this Bill.

On this side of the Committee we have already quoted the large number of employers who already pay double time. I have made an effort (although I am not very happy about it) in this amendment to try to come to terms with the arguments about small employers and small shops by suggesting that there can be a variation on the double time and that it can be possible, if there is negotiation or agreement between the parties, to pay at an hourly rate of time-and-a-half. I am not very keen on that, but it was an attempt to deal with the argument that many small businesses could not afford to pay double time.

As regards the argument put forward by the noble Lord, Lord Rochester, I am grateful for the general support which he has given. He raises the question of enforceability. He is quite right about that; the amendment does not include a mechanism for enforcement. If the Committee were to agree to enhanced payment for Sunday working as a clause to be written into the Bill, it is my intention to come back at Report stage with some measure which would enable that provision to be enforced. It would enable the employee not getting the right amount of premium paid to enforce that requirement. But first I need to get the Committee's agreement that there should be enhanced payment. With that in view I would like to test the feeling of the House.

The Deputy Chairman of Committees (Lord Skelmersdale)

Before the noble Baroness does that I must point out that we are still considering Amendment No. 37, about which the noble Lord, Lord Stoddart, has to decide what he intends to do.

7 p.m.

Lord Stoddart of Swindon

Perhaps I may deal with Amendments Nos. 37 and 38. I shall be very brief because my noble friend Lady Turner has replied extremely well to the points which were made. I say to the noble Lord, Lord Boyd-Carpenter, who suggests that these amendments are damaging, that the people whom this Bill affects certainly would not believe that they were damaging since the amendments seek to protect their position further vis-½-vis Sunday working and Sunday pay. As regards his view that it is not a subject for legislation, I hope that as a committed Christian he will take note of the view of the right reverend Prelate the Bishop of Liverpool that legislation is for the protection of the weak against the strong.

The noble Lord, Lord Renton, did not make a very good case on behalf of small firms. The noble Lord does not do justice to the very many small shops. Many of them are already giving enhanced pay for Sunday and they also give holiday and sick pay. Is he really suggesting that small firms are not as good as large ones as regards the treatment of their employees? If he is doing so, he is not doing them justice.

Lord Renton

I do not believe that the noble Lord could have understood what I was saying. I said that it is usual, customary and acceptable for people to be paid extra pay for Sunday compared with what they are paid at other times. That is done in small shops as well as in large stores.

Lord Stoddart of Swindon

I am glad that the noble Lord confirms that because he gave the impression that small shops were unable to do that and that some of them were unwilling to do so. I am glad that he has clarified his position. Having said that and having made those points, I believe that my noble friend's original Amendment No. 36 should be given a clear run. Therefore, I beg leave to withdraw both my amendments to her amendment.

[Amendment No. 37, as an amendment to Amendment No. 36, by leave, withdrawn.]

[Amendment No. 38, as an amendment to Amendment No. 36, not moved.]

The Deputy Chairman of Committees

The Question I therefore have to put to the House is that Amendment No. 36 be agreed to?

Lord Rochester

Before the noble Baroness decides what she intends to do about Amendment No. 36, if I am in order in saying a few words—

Noble Lords

No, the Question has already been put.

Lord Rochester

Am I in order in proceeding? I see that I have the approval of the Chair, which is sufficient. The noble Baroness said that I was in general support of her amendment. I did go so far as to say that I was tempted to support the amendment and those of the noble Lord, Lord Stoddart of Swindon, if only to act as a disincentive to more and more employers seeking to open their businesses on Sunday. That is what I said. I hope that I also made it plain that I questioned whether it was right for the law to seek to prescribe rates of pay. I also said how difficult it was to see how any such law could be enforced. There was also the question of small shops, which I was unhappy about as regards employment. In those circumstances I shall not find it possible to support her amendment.

On Question, Whether the said amendment (No. 36) shall be agreed to?

Their Lordships divided: Contents, 53; Not-Contents, 119.

Division No. 3
CONTENTS
Archer of Sandwell, L.	Carmichael of Kelvingrove, L.
Boston of Faversham, L.	Carter, L.
Brookes, L.	Castle of Blackburn, B.
Callaghan of Cardiff, L.	Clinton-Davis, L.

Cocks of Hartcliffe, L.	Mallalieu, B.
Dean of Beswick, L.	Mason of Barnsley, L.
Diamond, L.	McCarthy, L.
Donaldson of Kingsbridge, L.	McIntosh of Haringey, L.
Donoughue, L.	Merlyn-Rees, L.
Dormand of Easington, L.	Mishcon, L.
Ewing of Kirkford, L.	Morris of Castle Morris, L.
Gallacher, L.	Mulley, L.
Gould of Potternewton, B.	Oxford, Bp.
Graham of Edmonton, L.	Pitt of Hampstead, L.
[Teller.]	Plant of Highfield, L.
Gregson, L.	Prys-Davies, L.
Haskel, L.	Rea, L.
Hollis of Heigham, B.	Richard, L.
Howell, L.[Teller.]	Sefton of Garston, L.
Jacques, L.	St. Albans, Bp.
Jay of Paddington, B.	Stoddart of Swindon, L.
Jenkins of Putney, L.	Taylor of Blackburn, L.
Kilbracken, L.	Taylor of Gryfe, L.
Listowel, E.	Turner of Camden, B.
Liverpool, Bp.	Wedderburn of Charlton, L.
Lock wood, B.	Williams of Elvel, L.
Longford, E.	Williams of Mostyn, L.
NOT-CONTENTS
Addison, V.	Harris of High Cross, L.
Alexander of Weedon, L.	Haslam, L.
Allenby of Megiddo, V.	Hayhoe, L.
Annaly, L.	Henley, L.
Archer of Weston-Super-Mare, L.	Holderness, L.
Ashbourne, L.	HolmPatrick, L.
Astor, V.	Howe, E.
Attlee, E.	Jeffreys, L.
Barber of Tewkesbury, L.	Jenkin of Roding, L.
Blatch, B.	Kenilworth, L.
Blyth, L.	Kenyon, L.
Boardman, L.	Kimball, L.
Borthwick, L.	Kinnoull, E.
Boyd-Carpenter, L.	Leigh, L.
Brabazon of Tara, L.	Lindsay, E.
Braine of Wheatley, L.	Liverpool, E.
Bridgeman, V.	Long, V.
Brigstocke, B.	Lucas of Chilworth, L.
Brougham and Vaux, L.	Lucas, L.
Bruntisfield, L.	Lyell, L.
Burnham, L.	Mackay of Ardbrecknish, L.
Butterworth, L.	Mackay of Clashfern, L.[Lord
Cadman, L.	Chancellor.]
Campbell of Alloway, L.	Macleod of Borve, B.
Campbell of Croy, L.	Masham of Ilton, B.
Carnegy of Lour, B.	Merrivale, L.
Carnock, L.	Miller of Hendon, B.
Chalker of Wallasey, B.	Monson, L.
Chelmsford, V.	Moran, L.
Clark of Kempston, L.	Moyne, L.
Clinton, L.	Murton of Lindisfarne, L.
Colwyn, L.	Newall, L.
Courtown, E.	Park of Monmouth, B.
Cox, B.	Pearson of Rannoch, L.
Craig of Radley, L.	Peel, E.
Craigmyle, L.	Pender, L.
Cumberlege, B.	Perry of Southwark, B.
Dean of Harptree, L.	Rankeillour, L.
Denton of Wakefield, B.	Renton, L.
Dilhorne, V.	Renwick, L.
Dixon-Smith, L.	Rodney, L.
Downshire, M.	Romney, E.
Dundonald, E.	Seccombe, B.
Eden of Winton, L.	Simon of Glaisdale, L.
Elles, B.	Skelmersdale, L.
Elton, L.	St. Davids, V.
Ferrers, E.	Stewartby, L.
Flather, B.	Strange, B.
Fraser of Carmyllie, L.	Strathcarron, L.
Gainsborough, E.	Strathclyde, L.
Gardner of Parkes, B.	Strathcona and Mount Royal, L.
Goschen, V.	Strathmore and Kinghorne, E.
Gowrie, E.	[Teller.]
Hacking, L.	Swinton, E.
Harmar-Nicholls, L.	Tebbit, L.

Thomas of Gwydir, L.	Wade of Chorlton, L.
Torrington, V.	Wharton, B.
Trumpington, B.	Whitelaw, V.
Tugendhat, L.	Windlesham, L.
Ullswater, V.[Teller]	Wise, L.
Vivian, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.14 p.m.

Earl Ferrers moved Amendment No. 39: Page 18, line 43, at end insert: ("16A. —(1) Any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports—

1. (a) to exclude or limit the operation of any provision of this Schedule, or
2. (b) to preclude any person from presenting a complaint to an industrial tribunal by virtue of any provision of this Schedule.

(2) Sub-paragraph (1) above does not apply to an agreement to refrain from presenting or continuing with a complaint where—

1. (a) a conciliation officer has taken action under section 133(2) or (3) of the 1978 Act (general provisions as to conciliation) or under section 134(1), (2) or (3) (conciliation in case of unfair dismissal) of that Act, or
2. (b) the conditions regulating compromise agreements under the 1978 Act (as set out in section 140(3) of that Act) are satisfied in relation to the agreement.").

The noble Earl said: In moving Amendment No. 39, I should like to speak also to Amendment No. 41. Amendment No. 39 meets a commitment given by the Government in another place to ensure that a provision in an agreement between a shopworker and his employer cannot generally exclude the provisions of this schedule.

Amendment No. 41 provides that the remedy by way of complaint to an industrial tribunal in respect of the right not to be dismissed for refusing Sunday work, which is set out in paragraphs 7 and 8 of Schedule 4, will not be replaced by the provisions of a dismissal procedures agreement designated by the Secretary of State for Employment under Section 65 of the 1978 Act. This is simply because we thought it better to rely on the statutory provisions in this schedule. Indeed, at present, there is only one such designated agreement in force, in the electrical contracting industry. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 40: Page 18, line 43, at end insert:

("Transitional modifications relating to maternity cases

16B. —(1) Where an employee exercises a right to return to work under Part III of the 1978 Act (maternity) and, because amendments of that Part made by the Trade Union Reform and Employment Rights Act 1993 (in this paragraph referred to as "the 1993 Act") do not have effect in her case, her right is a right to return to work in the job in which she was employed under the original contract of employment—

1. (a) the preceding provisions of this Schedule shall have effect subject to the modifications in sub-paragraphs (2) and (3) below, and
2. (b) sub-paragraph (4) below shall have effect.

(2) In paragraph 1(4), for "her contract of employment on the last day of her maternity leave period" there shall be substituted "her original contract of employment".

(3) In paragraph 2(5), for paragraph (b) there shall be substituted—

• "(b) under her original contract of employment, she was a shop worker and was not employed to work only on Sunday".

(4) If the employee was employed as a shop worker under her original contract of employment, she shall not be regarded as failing to satisfy the condition in paragraph 2(1) (a) or (d) or 5(1) (c) above merely because during her pregnancy she was employed under a different contract of employment by virtue of section 60(2) of. the 1978 Act (as it has effect before the commencement of section 24 of the 1993 Act) or otherwise by reason of hear pregnancy.

(5)In this paragraph and in paragraphs 1 and 2 above as modified by sub-paragraphs (2) and (3) above "original contract of employment" has the meaning given by section 153(1) of the 1978 Act a; originally enacted.").

The noble Earl said: This is also a technical amendment to ensure that all shopworkers, who are subject to the current statutory provisions on maternity absence, will not inadvertently lose their protected or opted-out status under the schedule by virtue of being temporarily employed under a different contract from their normal contract. It is necessary because, under the current provisions of the Employment Protection (Consolidation) Act 1978, some women, who are normally employed as shopworkers, may be employed on a temporary contract which does not require them to do shop work. This may happen if, because of her pregnancy, a woman is incapable of continuing in her job or is not by law permitted to do so (for example if it contravenes health and safety regulations). For example, if she is still engaged on this contract at the point when the Bill comes into operation, and then returns to her original contract of employment as a shopworker, without this amendment she would not have fulfilled the requirement of the schedule that, in order to qualify as a protected worker, she should have been continuously employed as; a shopworker. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 41: Page 18, line 48, at end insert: ("17A. In section 65 of the 1978 Act (exclusion in respect of dismissal procedures agreement) at the end of subsection (4) there shall be added "or the right conferred by paragraph 7 or 8 of Schedule 4 to the Sunday Trading Act 1994".").

The noble Earl said: I spoke to this amendment with Amendment No. 39. I beg to move.

On Question, amendment agreed to.

Schedule 4, as amended, agreed to.

Clauses 5 to 9 agreed to.

Remaining schedule agreed to.

House resumed: Bill reported with amendments.