- (a) the occupier of a shop in respect of which a consent under this Schedule is in force is convicted of an offence under paragraph 8 below by reason of his failure to comply with the conditions subject to which the consent was granted, or
- (b) the local authority are satisfied that the loading or unloading authorised by virtue of a consent under this Schedule has caused undue annoyance to local residents,
1315 the local authority may revoke the consent.").
§ On Question, amendments agreed to.
§ Clause 3 [Construction of certain leases and agreements]:
Baroness Gardner of Parkes moved Amendment No. 27:
Page 1, line 18, leave out ("occupier") and insert ("tenant").
§ The noble Baroness said: My Lords, I beg leave to move the amendment standing in my name on the Marshalled List. I indicated to the noble Earl that I would like to speak to Amendments Nos. 27, 28 and 29, but deal with Amendment No. 30 separately. The reason is that Amendments Nos. 27, 28 and 29 are very straightforward. I have put them forward because, strictly speaking, it is not right to use the word "occupier" in the Bill and to place all the obligations on the occupier, when under normal leasehold agreement (or normal lease) the obligation would be on a tenant. The agreement would be between landlord and tenant. The occupier may well not be the tenant. I believe therefore that that is a technicality and I hope that the noble Earl will be able to agree to it. I beg to move.
My Lords, my noble friend invites me to agree with her. I should love to do so but I am afraid that I cannot. As the Bill is at present drafted, Clause 3 refers to the occupier of the shop. My noble friend's amendments would change that so that the clause would refer instead to the tenant.
I am advised that the term "tenant" is narrower than is the term "occupier". The effect of my noble friend's amendment would potentially be to remove the protection which is afforded by Clause 3 to those people who might not have leases but who might have the right to open their shops under some other arrangement—for example, under a licensing agreement. I fancy that was not my noble friend's intention; she simply sought to improve the drafting.
I hope that she might agree that, on this occasion, her attempts to improve the drafting were not as successful as she might have hoped. Personally, I prefer to see the Bill remain as it is.
§ Baroness Gardner of Parkes
My Lords, I thank the Minister for that reply. I should like to look at it in detail, consider the implications of what he said and, if necessary, come back at a later stage. I beg to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 28 and 29 not moved.]
Baroness Gardner of Parkes moved Amendment No. 30:
Page 2, line 13, at end insert:
(" ( ) Where under the terms of any such lease or agreement as is mentioned in subsection (1) above the tenant of a shop is required to pay to the landlord a service charge (however described), that lease or agreement shall not be regarded as requiring the tenant of a shop to pay any part of a service charge in respect of a Sunday on which the shop is not open for the serving of retail customers provided that the tenant shall have given not less than 12 weeks prior notice in writing to the landlord of his intention not to open for at least 12 consecutive Sundays and is not open on any of them.
( ) The amount of any service charge not payable under this section shall if not readily calculable or agreed between the landlord and the tenant be incorporated in the annual or periodic certificate or statement of expenditure prepared by or on behalf of the landlord by deducting from the total service charge payable by the tenant for that year or period the proportion that the number of Sundays for which no charge can be made in that year or period bears to the number of days for the year or period to which the certificate relates.
( ) In this section 'service charge' means an amount payable by the tenant of a shop as part of or in addition to the rent and
§ The noble Baroness said: My Lords, this amendment on service charges is a follow-up of the previous amendment which my noble friend Lord Lyell very kindly moved for me at Committee stage. Various points were raised by. the Minister in his reply which I feel that we have covered in this amendment.
§ The real point of substance made by the Minister on the original amendment that I tabled was that it would relieve any occupier of a shop from a service charge in respect of any Sunday on which the shop was closed. That point has now been addressed in the revised amendment.
§ I entirely take the point made by the Minister and therefore the amendment has been revised so that the shopkeeper can only enjoy relief if his shop is usually closed on Sundays and not just because, for whatever reason, he chooses not to open on a particular Sunday. That is therefore quite a difference in this amendment. To ensure that that happens, the amendment requires that a shopkeeper seeking relief should give 12 weeks' notice to the landlord of his intention not to open for at least 12 consecutive Sundays. If he does that and does not subsequently open on any of those Sundays—it would have to be that the position was factually as he had given notice—he would be relieved of the service charge for those Sundays.
§ The Minister said that the concept of the amendment was impractical. I ask rhetorically: how can a shopping centre manager be sure which part of the service charge bill relates to Sunday and which part relates to Friday? I should like to reply that the point is not as impractical as the Minister suggested. It is not unusual at present for shops in shopping centres to open for longer hours during weekdays than the "usual hours" defined in the lease. When that happens, the landlord simply makes a proposal aimed at generating a reasonable payment to cover the additional costs from those who benefited from the longer opening hours.
§ A recent example was the Waitrose branch at Barnet which had a letter sent to it pointing out exactly the issues and the way in which the arrangements would work. I can show that letter to the Minister if he would like to see it. I shall not delay the House by going into that detail just now.
§ Several specific factors are included in the service charge. In the debate the Minister mentioned that it usually covered security, cleaning and electricity. 1317 Surely that demonstrates that there is nothing new in this idea. Moreover, it is important to note that the greatest part of any service charge is made up of labour costs which are usually higher for Sunday working and are therefore more easily ascertainable.
§ Again in the revised amendment the second subsection seeks to address the point raised by the Minister as to how apportionments would be made where they are not easily ascertainable. The amendment provides that where the charge is not agreed—and in practice that would be a minority of cases—it should be apportioned using a simple statutory formula. For example, the total service charge covers 365 days. If the number of Sundays closed is 48, that is 12½ per cent. So the apportionment would be 12½ per cent.
Lastly, it is somewhat fanciful to suggest that if a large shop was shut and did not, under the terms of this amendment, have to pay the service charge for Sunday, it nevertheless benefited, as was said,
from all the potential customers passing its window displays and seeing all the lovely things inside on their way to the small shops".—[Official Report, 14/4/94; col. 1706.]
If that were true, the same would be true of window shopping in the small shops that were closed. It is not only the large shops that benefit from window shoppers.
§ In fact, however, the amendment is primarily designed to protect the smaller shopkeeper who does not wish to open on Sundays but who may be forced to do so by the levying of service charges. The issue is quite simple. Service charges for Sundays should be paid only by those who have benefited from the opening of the shopping centre on a Sunday. Those who exercise the right effectively given to them by Clause 3 of the Bill to remain closed should not have to subsidise those who choose to open. The Minister, in his comments, does not seem to have taken that point in, and I ask him to give his view. I beg to move.
My Lords, I pointed out to my noble friend in Committee that I had great doubts about whether this was an area about which it is sensible to prescribe rigidly in statute something which is perfectly susceptible of solution through the more flexible medium of negotiation between individual parties. That remains my view.
It has been said that it is a strand within the Bill that no shopkeeper should be obliged to open on a Sunday. That is why your Lordships agreed that Clause 3 should be the third clause to the Bill. But there has to be a sense of balance. It is one thing to ensure that the law does not force shopkeepers to open; it is quite another to allow a shopkeeper who does not wish to open to bully his fellow shopkeepers into not opening either, even if they wish to do. so. If we seek now to legislate further in this area as the amendment proposes, we are in danger of altering the terms of potentially thousands of contracts in a way which means that we cannot be certain of a result that is either fair or practicable.
I put to noble Lords in Committee the proposition that while most Members would probably feel it to be fair that a small shop should not have to pay a service charge if it did not trade on a Sunday, the same may not necessarily be true in the case of a large shop. Where a large shop refused to pay its share of the service charge, 1318 that share would need to be allocated among its smaller brethren in the shopping precinct. In some circumstances that might mean that the small shops would have to pay such a disproportionately high service charge because the larger shop did not want to open that the smaller shops could not afford to open on a Sunday even if they wished to do so. Therefore, small shops may be forced to stay shut against their will simply because one or two large retailers had "used their muscle"—as I have heard that process sometimes inelegantly described by large retailers themselves—and decided to stay shut.
I spoke in Committee of the practicalities of the amendment and I should like to draw your Lordships' attention to what I believe is a serious problem. Let us look at one element of that service charge—heating. Precinct managers may take the view that additional heating charges in respect of Sunday trading would be minimal. That is because, although the centre will be heated on a Sunday,, there is little additional cost in doing so over the cost of shutting down plant on a Saturday night, starting it up again on a Monday morning and heating up the centre from a lower temperature because the heating had not been on the day before.
Alternatively, some precinct managers may say, "We estimate the heating bill for the year to be so much; the heating bill for each day is therefore divided by 365 and we will charge each shop which opens on Sundays the relevant proportion of that amount." There is a case for either method of calculation. But being; neither a precinct manager nor a shopkeeper I would not wish Ito oblige everyone, by statute, to abide by a decision as to which is the right calculation. The same may go for your Lordships. This amendment seeks to impose the latter method of calculation on tenants where no agreement has been reached. In practice, I fancy that this would become the normal way of calculating the Sunday service charge.
Heating is just one example of the practical difficulties which this amendment involves. But why should a shop which chooses to remain shut on a Sunday be let off, not only one-seventh of the week's heating bill, but also one-seventh of the week's insurance bill and on top of that one-seventh of the repair bill. I would suggest to your Lordships that if the roof springs a leak, it is immaterial whether the shops which are protected by that roof are open or closed on a Sunday.
Let us look for a moment at the question of the security charge. Presumably those shops which are shut on a Sunday would not wish the security personnel to turn a blind eye to smash and grab raids on their property. And how much should shut shops pay for the free advertising which they receive as shoppers pass their window displays, all beautifully lit up by electricity for which they are not paying, on the way to shops which are open?.
Leaving these matters and others to be resolved locally enables the managers to come up with a figure that sounds about right and which is accepted by the tenants. I, for one, have no doubt that if left to their own devices, managers and tenants will be able to negotiate a solution. I quite understand that my noble friend is 1319 trying to prevent what she perceives as an injustice; and your Lordships may agree with her. That is a matter for your Lordships. But I personally remain unconvinced and, if the matter is put to the test—and I hope it is not —I shall not be supporting the amendments. I think that it is better for it to be done by local negotiation rather than by statute.
§ Baroness Gardner of Parkes
My Lords, I thank the Minister for that reply but I think he has taken the arguments that I put forward and turned them upside down. I do not think that that is the way they should be. I therefore feel that I must go into it very carefully. My intention was not in any way to have the large shops bullying the small but rather to protect the small shops from what could be a disastrously high expense for them which could force them to open against their will. This matter must be gone into much more thoroughly and I will hope to have an opportunity to discuss this with the Minister and perhaps bring it back at the next stage of the Bill. New points have been brought out in his reply which I shall study very carefully. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 4 [Rights of shop workers as respects Sunday working]:
§ 10.45 p.m.
Baroness O'Cathain moved Amendment No.31:
Page 11, line 19, at end insert:
("catering business" means
§ The noble Baroness said: My Lords, I wish to speak to the amendments standing in my name on the Marshalled List. The purpose of the amendments is to clarify in two separate respects the precise scope of the employment provisions provided in Schedule 4. The first concerns the treatment of employees engaged in the sale of meals and refreshments where this is incidental to the prime activity of the business. For example, is the cinema employee who, as part of his job, sells drinks or ice-creams to customers a shop worker for the purposes of Schedule 4, or not; or, indeed, is a steward in the Barbican Centre who sells programmes before the performance and ice-creams during the interval a shop worker? As it happens, not one of our stewards is employed on sales each evening but over a month has a rota which includes selling on one or two occasions. Common sense suggests that the answer should be no. However, given that the schedule provides a specific exemption only for premises used primarily for the sale of meals, refreshments or intoxicating liquor for consumption on the premises, I am concerned that the present draft may not lead to this result.
§ The second concerns the position of employees who are not themselves engaged in the sale of goods of any kind but who happen to work in the premises where a retail trade or business is carried on. To give an example, are the curators of the National Gallery or 1320 other establishments to be regarded as shop workers by virtue of the fact that they are employed in premises which contain a shop, or are they not? Again I fear that the schedule as drafted is not altogether clear in this respect. The purpose of the amendments is therefore to introduce a degree of certainty on each of these matters and they are essentially of a technical nature.
§ Turning to the first point, the Shops Act 1950 excluded from its restrictions the sale of meals, refreshments and intoxicating liquor for consumption on the premises. A similar exemption is carried forward into Schedule 4. However, noble Lords may note that under the current definition, this exemption is restricted, as I have said, to premises used primarily for such sales. The exemption does not therefore appear to extend to premises where such activities are secondary or incidental. This is clearly anomalous. I should be grateful if the Minister, in responding to these amendments, would clarify whether my interpretation of the schedule is correct and, if so, whether such an anomaly is intentional.
But as I indicated in my introductory remarks, the difficulties do not stop there. The current definition of "shop" in Schedule 4 says that a shop,
includes any premises where any retail trade or business is carried on
subject only to the exemptions listed. This appears to lead to the rather curious result that premises which no one would generally regard as shops are to be treated as such for the purposes of Schedule 4. For example, cinemas, concert halls, leisure complexes, cathedrals, museums, etc., could, if a retail trade or business were carried on in any part, be regarded as shops for the purposes of Schedule 4. As a consequence, it would appear that all employees in such premises would have the protections afforded by Schedule 4 to the Bill rather than simply those who worked in the shop itself.
§ So, for example, where a sports centre contained a shop, not only would the shop staff be protected, but so too would the tennis coaches and pool attendants. It is not inconceivable that if a hotel receptionist sells a guest a toothbrush, the hotel could be considered a shop and therefore the chambermaids, the porters and the gardeners should also be considered shop workers and would have the right to refuse to work on Sundays. I could go on to give similar examples relating to many other types of establishment which are caught by Schedule 4 in this way.
§ Again, I shall be grateful if the Minister could clarify whether the present draft could really lend itself to such a bizarre interpretation. If that is indeed the case, I hope that he will at least be able to agree to consider further the points which I have raised and, if the amendments proposed do not properly address the matter, that he will undertake to bring forward his own amendments to address the problems I have identified. I beg to move.
§ Viscount Brentford
My Lords, perhaps I may ask one question of the noble Baroness. I am happy with all these amendments except Amendment No. 32. Does it mean that its effect is to remove protection from those who sell goods in off-licences? They were previously picked up by line 24, whereas the noble Baroness is deleting that line by Amendment No. 32. While her 1321 amendment picks up those who sell in restaurants and so on, the noble Baroness does not pick up those who sell goods in off-licences. Is she intending to remove protection from people who sell goods in off-licences?
The Viscount of Falkland
My Lords, I support the noble Baroness in what she said in connection with cinemas. The increase in cinema attendance in the past few years is very welcome. It has brought about a change in the experience of going to the cinema which is still mainly limited to young people. The shopping aspect of it is becoming increasingly important. Noble Lords may have seen recent figures of the proportion of the amount spent by each cinema-goer at the weekend on other items apart from food which may include popcorn, drinks and other things. There are such other items as publicity material and what is described in the business, I believe, as "memorabilia". That could be "T" shirts and so on.
The purpose of going to the cinema is to see films and not to go shopping. Shopping and seeing the film have become a composite experience. It would be quite wrong, as the noble Baroness said, to view people who sell under those conditions as shop workers. I would support the amendment if it seeks to clear up any misunderstanding here and obviates any possible action being taken by a local authority if the thought behind the Bill were misinterpreted. I repeat that I would welcome that. Indeed, I would welcome it if it applied also to any other place where a similar combination of entertainment and purchasing of goods takes place.
§ Lord McCarthy
My Lords, it may be that it is late at night and I am tired. We are all tired. However, am I right in thinking that the purpose of the noble Baroness's amendments is to make sure that people who might be protected are not protected? Is it the position that there might be some workers who are protected and cannot be forced to work Sundays but the noble Baroness wants to make absolutely certain that they are not protected and that they have to work on Sundays? Am I correct that the purpose is not to give rights but to take them away?
§ Baroness O'Cathain
My Lords, no. I am worried about the definition of "shopworker" in the Bill because the people I am talking about are not "shop" workers. They are people employed, say, as stewards who cannot really opt out of working on Sundays
§ Baroness O'Cathain
No. They do not have that option because Sunday is almost the busiest day of the week for concert halls and cinemas and those people have accepted jobs on the basis that they will work on Sundays. We will he causing employers many problems if we regard such people as "shopworkers" and give them the ability to opt out. That could mean being unable to operate such facilities. It is as simple as that.
My Lords, I am grateful to the noble Baroness, Lady O'Cathain, for bringing these matters to the attention of the House. As the noble Baroness 1322 explained, the amendments deal with two separate issues: first, the treatment of a retail trade or business which is involved in the sale of meals and refreshments where this is incidental to the primary activity carried on at the premises; and, secondly, the treatment of premises, which are used mainly for purposes other than those of a retail trade or business but where a retail trade or business is carried on in a part of the premises.
The noble Baroness asked for guidance on whether her understanding of the schedule is correct. On the first point, I would agree with the noble Baroness that the treatment of outlets which are engaged in the sale of meals and refreshments is inconsistent as the schedule is drafted at present. Indeed, it does seem anomalous that, as presently drafted, there is a specific exclusion from the provisions of Schedule 4 for a business where the sale of meals and refreshments is the primary activity of the business; but that there is not an exclusion for a business, such as a cinema or theatre, which may sell ice-cream, drinks and other refreshments as very much a secondary activity to its patrons during the intervals in and between performances. That is clearly something that needs to be sorted out; and this is what Amendments Nos. 31, 32 and 34 achieve. I commend them to the House.
The second point addressed by the noble Baroness is covered by Amendments Nos. 35, 36, and 38, and is of more general concern. Essentially, the difficulty arises from a potential uncertainty in the meaning of the word "premises" in the particular context of Schedule 4. This becomes particularly pertinent when we consider the position of various premises which would not on any commonsense understanding be regarded as shops but where some retail trade or business is conducted in a part of them.
Paragraph 1 of Schedule 4 deliberately includes a broad definition of shop work so that it clearly encompasses all those employees who would commonly be regarded as shopworkers. However, it has never been any part of the Government's intentions to use the opportunity which is provided by the reform of the law on Sunday trading to change the employment conditions of those who are not, and who would not., naturally be regarded by anyone as shopworkers.
It has certainly never been the Government' s intention that, for example, where a church or cathedral has a gift shop, the whole church, rather than just the gift shop, would be classified as a shop. Were it to be otherwise, then employed persons working in or about the whole church or cathedral, including the clergy, would be regarded as shopworkers and would be able to opt out of Sunday working. I think that most of your Lordships might consider that a pretty bizarre concept and I have no doubt that the right reverend Prelate would not approve of it. Equally, I fancy that your Lordships would not be surprised to learn that it was not the Government's intention that opera singers who are employed to perform at Covent Garden on a Sunday should be treated as shop workers, by virtue of the fact that one might buy a book about opera in the foyer.
I am advised that case law indicates that "premises" may be taken to mean only that part of a building where the retail business was carried on. It is therefore unlikely 1323 that a tribunal would come to a conclusion that St. Paul's Cathedral was a shop rather than a church and that all those who worked in or about it were shop workers. Indeed, I am not aware of any vicar who has been prosecuted in the past 40 years under the Shops Act 1950, which uses the same definition of "shop" as Schedule 4. But it is possible that the position may be rather less clear cut than we might hope that it would be. For example, it is not entirely clear that tribunals would be coming to an unreasonable finding of fact in holding that a cinema or concert hall was a shop because of the routine sales of books or music cassettes and compact discs which take place within it.
In short, in providing that a "shop" includes,any premises where any retail trade or business is carried onwe may inadvertently have raised a doubt as to our intentions with respect to Schedule 4 which it might be sensible to resolve. To be absolutely clear on that we intend that shops which exist within buildings such as churches and museums should fall within the definition of "shop" for Schedule 4 purposes. But we do not intend that the whole church or museum should become a shop merely because the odd sale takes place within it, because that, frankly, would be absurd.
So while it is not entirely clear that the amendments are strictly necessary, there appears to be a degree of uncertainty as to the result which might be achieved by the schedule which argues in favour of accepting these amendments.
In considering how we should respond to the proposed amendments, the Government have been mindful of their commitment to ensure that Sunday shop work is undertaken on a voluntary basis. I therefore wanted to satisfy myself that the amendments, whatever their intention and however technical in purpose, did not inadvertently remove protection from shop workers. Such a result would indeed be perverse given the government amendments which we will be discussing later today which extend the Schedule 4 protections to those who are employed in hire shops, like video shops, and to those who do not have a contractual requirement to work on Sundays.
I am confident that the amendments will not affect the protections which are afforded to shop workers by Schedule 4. Rather, they merely clarify the position of employees whom no one could reasonably consider to be shop workers. I therefore commend them to the House.
§ 11 p.m.
§ Baroness O'Cathain
My Lords, I am grateful to the Minister for his reply. I can assure him that his fears that we are trying to reduce protection for shopworkers are not founded.
§ On Question, amendment agreed to.
Baroness O'Cathain moved Amendment No. 32:
Page 11, leave out line 34.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 33:
Page 11, line 35, leave out from ("of') to ("and") in line 36 and insert ("hiring goods otherwise than for use in the course of a trade or business").
§ The noble Earl said: My Lords, the amendment broadens the scope of Schedule 4 to extend the new employment rights to a further group of employees: those who work in places such as video hire shops and tool hire shops whose work may involve the hire rather than the sale of goods.
§ The video shop has become an increasingly familiar addition to the high streets and shopping precincts of our towns over the past few years. Virtually every town now has at least one. In many cases they are run in conjunction with a retail business, perhaps as a sideline to a convenience store or an off licence. In some cases they are entirely self contained. However, I fancy that your Lordships, in common with most of the population, would regard them as shops much like any other shop. As such, the Government consider that their employees should be covered by the employment measures in Schedule 4.
§ Video shops are not, of course, the only form of hire shop. The amendment extends the coverage of Schedule 4 to workers in other shops which are in the businesses of hiring to private customers, whether video films or tools for the DIY enthusiasts. The amendment provides that their employees would enjoy the same protections afforded by the schedule as other shop workers if it is decided to open such outlets on a Sunday. I beg to move.
§ On Question, amendment agreed to.
Baroness O'Cathain moved Amendments Nos. 34 to 36:
Page 11, line 38, leave out from ("include") to end of line 39 and insert ("catering business or the sale at theatres and places of amusement of programmes, catalogues and similar items").
Page 11, line 40, after ("includes"), insert ("subject to sub-paragraph (IA) below").
Page 11, line 41, leave out from ("on") to end of line 46.
§ On Question, amendments agreed to.
Baroness Turner of Camden moved Amendment No. 37:
Page 12, line 4, at end insert ("and/or a worker within the meaning of section 8 of the Wages Council Act 1986, who is required to do shop work, or may be required to do such work.").
§ The noble Baroness said: My Lords, I regret that at this late hour I must move what we consider to be important amendments on employee protection. I may well have to come back on Third Reading on similar subjects.
§ As regards Amendment No. 37, one of the main anxieties of those on this side of the House has been to ensure that shop workers have proper protection. One of our arguments has been that the protections afforded in Schedule 4 do not go far enough. This amendment seeks to ensure that protection is afforded to all shop workers —and I emphasise all—because that was the Government's original intention.
§ Schedule 4 addresses the contracts of employment of shop workers. As regards the protected and opted-out shop workers, any contract which requires them to work on Sundays is unenforceable. My argument is that these measures apply only to people engaged under contracts of employment. There is no comparable provision for people engaged under contracts for services. That could be potentially serious, given that it could affect a vulnerable group of workers, such as casual workers, who may be said by the courts not be be employees but 1325 effectively self-employed. Not only will the contractual obligations of such workers to work on Sundays be unaffected by the Bill, but they will also be denied the protection of the statutory right not to be unfairly dismissed and the right not to suffer any detriment for refusing Sunday work. That is important, living as we do in an era of increasing casualisation of employment.
An appropriate formula already exists whereby such people can be covered. Section 8 of the Wages Act 1986 defines a worker within the meaning of that Act as being:
an individual who has entered into or works under … one of the contracts referred to in subsection (2)",
and whose contracts are either a contract of service or contract of apprenticeship or:
any other contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of that contract that of a client or a customer of any profession or business undertaking carried out by that individual".
§ The Act's provisions apply whether such a contract is expressed or implied, and if expressed, whether it is oral or in writing.
§ This is a small amendment which cross-references to the appropriate section of the Wages Act. It would be sufficient to meet the arguments that I have advanced and to give full coverage to all people who are required, either by contract of service or contract for services, to work in shops. I beg to move.
§ Lord Rochester
My Lords, I support the amendment. I shall do so briefly because in moving it the noble Baroness, Lady Turner, made the case so effectively. There may well be need for shop working on Sunday where an individual is required to perform services for which the normal employment contract does not provide. Surely, it is right that the Bill should take account of that contingency.
It is possible that the Minister will say that the definition of a worker in Section 8 of the Wages Act 1986 already makes it plain that for the purpose of the payment of wages contracts of employment include contracts for services of the kind which the noble Baroness has in mind. The same principle must apply in this case, and therefore there is no need for the amendment. Even so, I suggest that a cross-reference to Section 8 needs to be made in the Bill in order to put the matter beyond doubt. If it cannot be said that Section 8 applies, then it seems to me that the Government should accept the amendment readily. It is entirely in keeping with the basic purposes of the Bill and I ask the Minister to agree to it.
§ Lord Henley
My Lords, I appreciate that the noble Baroness is concerned to ensure that all individuals who do shop work are covered by the employment provisions of the Bill. I hope I am able to persuade her and the noble Lord, Lord Rochester, that the proposed provision is unnecessary.
The definition of "shop worker" in Schedule 4 has been drawn deliberately very wide. Our purpose in doing so is to ensure that all employees in retail employment who may be affected by their employer deciding to open the shop where they work on Sundays will benefit from the generous protections which the 1326 schedule affords. Thus, the employment provisions of the schedule will extend not only to shop assistants and to checkout operators but to shelf-fillers, lift attendants, trolley stackers, and to numerous other ancillary staff whose job involves work in or about a shop which opens on a Sunday. They will, in addition, apply to all such shop managers and supervisory staff.
Neither is it necessary for the shop workers to be the direct employees of the retailer in order to benefit from the rights provided. Employees who are not employed by the shop itself, but are perhaps employed by outside contractors —for example, catering and security staff —will also be covered by the schedule if they are involved in work in or about a shop which opens on a Sunday.
However, the noble Baroness has correctly identified that there is, at least in theory, one category of shop worker to whom the schedule's provisions do not extend; that is, those who are engaged on contracts for services rather than of employment—put simply, those who are self employed rather than those who are employees.
But there are relatively few self employed retail workers and the vast majority of them are in fact owner managers. It is self-evidently unlikely that they would work on Sundays if they did not choose to do so and there is nobody who can force them to work. They have not got employers by any stretch of the imagination! There is, therefore, no identifiable group of people in need of the extension of the rights proposed in this amendment.
It may be argued that the extension is nevertheless needed in order to deter employers from making their employees self-employed so that they no longer enjoy the protections in the schedule. I have to say, however, that that possibility seems to me fanciful. The general unfair dismissal provisions have now been with us for well over 20 years and there is no evidence at all that employers have sought to give their workers self-employed status in order to escape them. Workers with the kind of self-employed status with which that part of the Wages Act to which the amendment refers is primarily concerned are concentrated in particular occupational sectors, such as the construction industry. Retail employment is not one of these sectors.
I should stress also—and I think that this is a very important matter, in case noble Lords are misled on this point—that the question of self-employment or employment is certainly not a question of choice for either the employer or the employees. It is a question of law and of fact relating to the status of the employee and the degree of control exerted over him. Therefore, I do not believe that it would be possible for employers to suddenly declare that all their employees must become self-employed, as some might fear.
I hope that with those assurances, the noble Baroness will accept that her amendment is unnecessary and that she will be content to withdraw it.
§ Baroness Turner of Camden
My Lords, I do not really accept that my amendment is unnecessary but 1327 unfortunately we are at such a late stage in the evening that I am not in a position to test the opinion of the House.
I do not find fanciful the notion that employers would prefer to employ people who are regarded as self-employed. In fact, as we know, self-employment has been increasing. In these days of what is now known as flexible employment and increasing casualisation it is quite likely that employers will seek to employ more people on that basis in order that they do not have to comply with the rights which are available elsewhere in legislation.
The Wages Act definition exists. That Act was introduced by this Government and they were quite happy with the Section 8 definition, which covers people in that sort of category. There is a growth of what is beginning to be known as "zero employment" where people are, more or less, on call. They are not actual employees, but they can be called in when the employer feels that they will be needed. There is a growth in that kind of flexibility and casualisation. In those circumstances, it does not seem to me to be at all fanciful to imagine that there could be an increase in such employment and that those concerned would be very vulnerable and would require the kind of protection accorded to such people by the definition in the Wages Councils Act.
However, it is not my intention to divide the House, although I might have done so if it had been earlier in the evening. I shall certainly return to the matter on Third Reading with a view, perhaps, to testing how people feel about it. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11.15 p.m.
Baroness O'Cathain moved Amendment No. 38:
Page 12, line 4, at end insert:
("(1A) Where premises are used mainly for purposes other than those of retail trade or business and would not apart from sub-paragraph (1) above be regarded as a shop, only such part of the premises as—
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 39:
Page 12, line 28, at end insert ("sub-paragraph (1A) or (1B) below applies to him.
(1A) This sub-paragraph applies to a shop worker if—").
§ The noble Earl said: My Lords, in moving the amendment, I shall, with the leave of the House, speak also to Amendments Nos. 40 to 42, 47 and 49 to 51. The Government have always made it clear that they are committed to ensuring that Sunday shop work should be undertaken on a voluntary basis. During the consideration of the Bill in another place, my right honourable friend the Minister of State made it clear that, if there 1328 were any anxieties about the extent to which the Government had achieved that objective, he would be willing to consider them further.
§ The amendments address a point which was raised by the Union of Shop Distributive and Allied Workers. It concerns the position of shopworkers who are employed after the new law is brought into effect, but who are not required to work on Sundays. As it stands, the schedule provides no specific protection for shopworkers who are employed after the Bill comes into force and who are not contractually required to work on Sundays, but who may later come under pressure from their employers to do so. Such shopworkers would of course be able to take advantage of the significant protections which already exist in law if their terms and conditions of employment were changed without their agreement. However, their ability to use the statutory remedies which exist against unfair dismissal would depend on their having fulfilled the normal qualifying conditions of two years' service with their employer. Such workers would therefore be at a disadvantage compared to shopworkers who had agreed to a contractual requirement to work on Sundays and who, irrespective of how long they had worked for their employer, under the provisions of the schedule, would be able to withdraw from that agreement subject to a three-month notice requirement. That is clearly anomalous and I am grateful to USDAW for pointing it out.
§ The amendments deal with that anomaly by extending the definition of protected worker to include shopworkers whose contracts of employment do not provide for Sunday working. Such shopworkers will automatically enjoy the protections against unfair dismissal and other detrimental action afforded by the schedule. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendments Nos. 40 to 42:
Page 12, line 36, at end insert:
("(1B) This sub-paragraph applies to any shop worker whose contract of employment is such that under it he—
Page 12, line 37, leave out ("(1) (c)") and insert ("(OA) (c)").
Page 13, line 17, leave out ("(1) (a)") and insert ("(1A) (a)").
§ On Question, amendments agreed to.
Baroness Turner of Camden moved Amendment No. 43:
Page 14, line 36, leave out ("three months") and insert ("six weeks").
§ The noble Baroness said: My Lords, in Committee I argued that it was unreasonable to expect a shopworker to be required to give three months' notice to opt out of the obligation to undertake work on a Sunday. I suggested that one month would be quite sufficient and that any employer, especially in times when there is high unemployment, should not find it impossible to make alternative arrangements within one month.
§ The Government are fond of saying that the Bill has been drafted so that Sunday working becomes an entirely voluntary matter and that individuals will not, under the Act, suffer any detriment if they decide not to do so for whatever reason. Unfortunately, I was not able to persuade Members of the Committee that my 1329 suggested alternative of one month was reasonable; but I did detect some sympathy for the point of view that I expressed. Indeed, it was suggested by some noble Lords that it was a question of getting the right balance. I agree. However, I simply feel that three months tilts the balance too much away from the employee and towards the employer.
§ Let us imagine, for example, the situation of a shopworker who is probably not very highly paid—most likely, it will be a woman—who opts for shop work in the first instance because of the enhanced pay on offer and because she needs the extra money. However, like most women, she will probably have domestic responsibilities. Such responsibilities may suddenly become greater. An elderly relative may need additional care. The shopworker may lose whatever child minding facilities she has. She may simply find it all too much for her on top of looking after a home and young children. It seems too much to expect that she should have to give three months' notice of her desire to opt out.
§ I have therefore come back again with a reduced period of notice. I am suggesting six weeks mainly because the shopworker in question is probably weekly paid and to give a period of notice in weeks may be rather better and more in keeping with his or her general employment conditions. For the kind of worker we are considering I believe that it is too much to impose a three month notice period and I hope, therefore, that your Lordships will agree to reduce it to the period that I propose.
§ Again because of the lateness of the hour I regret that it is not possible to test the view of your Lordships on this issue. Nor do I intend to move the other amendments standing in my name on the employment questions because to do so at this late hour is not an adequate way of dealing with what I regard as very important issues. I will reserve my right to come back on these issues at Third Reading. In the meantime, I beg to move.
§ Lord Rochester
My Lords, I should first support the noble Baroness, Lady Turner, in what she has just said. It is not possible to discuss these amendments adequately at this time of night, and certainly not to divide the House should those in support of the amendments feel that to be desirable.
Having said that, like the noble Baroness, Lady Turner, I think that when we last discussed the subject of this particular amendment there was general agreement that it was a question of balance. The Government considered that a three month period achieved the right balance. I was among those who thought that the period should be no more than one month.
In moving her amendment today, or tonight, the noble Baroness has again adduced reasons why the period should be less than three months and in doing so has sought to bridge the gap between the Government and others among us by suggesting a compromise of six weeks. I shall not repeat the arguments used by the noble Baroness in favour of that proposal. I am, however, particularly concerned that if a shopworker is 1330 unexpectedly confronted with some family problem which means that he, or more likely she, no longer feels able to work on Sunday, she might be obliged to give one month's notice to leave altogether rather than the three months' notice required to opt out, and that seems to me to be unduly harsh. If the period cannot be six weeks, let it be the two months which the noble Lord, Lord Campbell of Alloway—I am sorry but not altogether surprised at this time of night that he is not in his place—seemed prepared in Committee to contemplate as reasonable. I hope that in his reply the noble Earl will give us some indication that the Government would like to achieve a consensus on this point. Meanwhile, I gladly support this amendment.
§ Viscount Brentford
My Lords, I also support this amendment. I was unhappy at Committee stage with the one month notice, which seemed to me to be too short from the employer's point of view, but I would warmly support a six to eight week period because I consider that three months is too long. It gives a lot of time for pressure to be brought on the employee, which I think could be unfair, and I believe that six to eight weeks is a much happier balance.
A reduced notice period would certainly mean that far fewer employees would cave in to this sort of pressure. As has already been mentioned, there are many reasons why a person would want to change his mind about this. I believe that there is no reason from the employers' point of view why that period should be as long as three months. I support a period of, say, six weeks as giving the right balance. I cannot see any problem in your Lordships making a sensible decision on this matter at this time. I hope that we can still do so.
§ Baroness Jay of Paddington
My Lords, I should like strongly to support the amendment in the name of my noble friend, and which I also signed. I should also like to support both her comments and those of the noble Lord, Lord Rochester, about the inappropriateness of considering these very important matters at this late hour. I hope that we shall have time at a more sensible hour of the day to return to them on Third Reading, when it would be preferable to test the opinion of the House.
I want to make one point briefly which has not yet been made. In Committee the Minister rejected the amendment in the name of my noble friend largely on the grounds that it would be inconvenient to employers if employees were able to opt out in a period of less than three months. I remind your Lordships that those major employers, who have been members of the Shopping Hours Reform Council and who have formed a major agreement on employment matters with USDAW, have already agreed on a voluntary basis that one month is sufficient for them to be able to replace workers. The Minister made the point that these were very large employers and the issue was a different one from that relating to small shopkeepers. I found that argument unconvincing when one remembers that most shopworkers who would be covered by the reduced period of notice would probably have to give only one or at most 1331 two weeks' notice if they were to resign permanently from the post, when presumably they could be replaced by their employers.
As my noble friend Lady Turner said, this measure would give additional protection in particular to the types of employee who may want to take what they would see as casual employment on a Sunday. They may very well be women with additional domestic responsibilities which they cannot foresee when they enter into a contract of work on Sunday.
§ Lord Stoddart of Swindon
My Lords, I, too, should like to support my noble friend Lady Turner in everything she said. It is true that the people who work in the retail trade are very vulnerable. Many of them are women and many are young people. They feel under pressure from their employers, whom they regard as very strong while they are weak. Three months is the devil of a long time, particularly, as my noble friend Lady Jay said, if you are a woman with family commitments. The timescale is very different under those conditions.
I shall not say more at this stage, but I want to support my noble friend on the Front Bench in her insistence —and I use that word advisedly—that these are important amendments which affect the conditions of work of a large number of people. It is not right that we should be discussing them at this time of night. I hope that the Minister will be able to give us the assurance that adequate time, at a proper time of the day, will be made available for us to discuss these amendments and, if necessary and if possible, to vote on the amendments at a reasonable hour when noble Lords can register their vote or their protest. I hope that he will be able to give us some help.
§ 11.30 p.m.
My Lords, I quite understand that, as the noble Baroness, Lady Turner, and the noble Lord, Lord Stoddart of Swindon, said, these are important amendments. They affect people's livelihoods, their contracts of work and so forth. I can understand noble Lords' distress at these matters arising so late in the evening. I share that distress. The noble Baroness will realise that it is difficult to determine exactly how long your Lordships will take over amendments to Bills. The noble Baroness said that she wants to return to the amendments at a later stage, and I am quite sure that it will be in order to do so. The noble Lord, Lord Rochester, said that he hoped we would be able to have a consensus over it.
These are always difficult matters. There has been considerable debate both here and in another place about what period of notice those who wish to withdraw from a contractual obligation to work on Sundays should be required to serve in order to benefit from the rights provided in Schedule 4.
The fact is that under the Bill those who are employed as shopworkers before the commencement of the Act will not be required to give any notice of their wish to refuse Sunday working. Those who take up employment in or about a shop after the Bill becomes 1332 law and who, in doing so, agree to a contractual requirement to work on Sundays will be required to serve a three-month notice period if they wish to opt out of the contract into which they willingly entered.
Your Lordships will be aware that the provision of a right to opt out represents a radical departure from the normal contractual position under which terms in a contract, once they have been agreed, are binding on both parties. That is a fundamental change. However, because the Government believe that no shopworkers should be required to work on Sundays against their will, Schedule 4 offers shopworkers a unique right to withdraw from a contractual obligation to work on Sundays.
Nevertheless, in adopting this approach it is essential that proper account should be taken of the operational needs of the employer and that any right to opt out should be subject to safeguards to prevent abuse. These are the two key considerations which have to be balanced when determining the length of the notice period. The Government remain of the view that a three-month notice period achieves the right balance.
I am bound to say I do not see any compelling reason why the three months' notice period should be reduced to six weeks, as, the noble Baroness's amendment suggests. But there are many arguments for maintaining it at three months. Three months is the maximum notice an employer may require and while safeguarding the rights of employees it also allows employers the flexibility to set a lower period to suit their individual business needs. What is possible in one outlet may be quite unmanageable in another.
For example, a large supermarket employing hundreds of workers may be able to cope with some of its employees opting out of Sunday working simply by seeking extra volunteers from within its existing workforce. A small newsagent, on the other hand, with only one or two employees, may have great difficulty continuing to trade if the entire complement of staff were able to opt out of Sunday working at six weeks' notice.
Size is not the only concern. If a store has only a handful of staff in certain key posts, whether they are in managerial posts or in posts where detailed specialist knowledge is required, it could create greater problems if those staff were to opt out of Sunday work at short notice than would arise if a checkout operator or shelf-filler were to opt out. There is likely to be a much smaller pool of workers from which a replacement can be found.
I hope your Lordships will agree that it is the responsibility of government to take into account the needs of all retailers—large and small, generalist and specialist. I believe that six weeks is too short a time to meet the business needs of the retail industry as a whole. Three months is a period which the retail industry as a whole would find practicable. By providing for a statutory three months' notice period, we will give employers adequate time to make alternative arrangements while at the same time allowing employees in the exceptional circumstances of the legalisation of Sunday shopping to be released from a contractual obligation within a reasonable period.
1333 I conclude by reminding your Lordships that the three months' period is a period in which a person has to give notice, having contracted to agree to work on Sundays and then having decided, for reasons best known to himself' or herself, that he or she wishes to break that contract. It seems to me a reasonable period.
§ Baroness Turner of Camden
My Lords, I am not altogether surprised by the Minister's response, although a little disappointed. I was under the impression the last time we debated the matter that a number of noble Lords, not just on our side of the House, felt that three months was rather a lot, bearing in mind the kind of employees about whom we are concerned. It is a question of balance. As I said earlier, I think that with three months the balance is too heavily on the side of the employer and not sufficiently on the side of the employee.
That is particularly the case if one takes seriously, as I do, the Government's view that Sunday working has to be voluntary. If it is to be of a voluntary nature, there should not be too much pressure put upon the employees concerned. Putting that length of notice on an employee does, in my view, impose an extra burden.
I thank noble Lords who have taken part in this debate on both sides of the House for their support. As I said earlier, I shall come back to this matter at Third Reading. As I also said earlier, I do not think that discussing amendments of this nature at this hour of night is at all a suitable thing to do. But having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 44 to 46 not moved.]
Earl Ferrers moved Amendment No. 47:
Page 17, line 25, leave out ("2(1) (a)") and insert ("2(1A) (a)")
§ On Question, amendment agreed to.
§ [Amendment No. 48 not moved.]1334
Earl Ferrers moved Amendment Nos. 49 to 51:
Page 18, line 22, leave out ("2(1) (a)") and insert ("2(1A) (a)").
Page 18, line 37, leave out ("2(1) (a)") and insert ("2(1A) (a)").
Page 19, line 42, leave out ("2(1) (a)") and insert ("2(1A) (a)").
Earl Ferrers moved Amendment No. 52:
Page 20, line 14, at end insert:
("Application of certain other provisions of 1978 Act.
In the following provisions of the 1978 Act—
section 129 (remedy for infringement of certain rights), section 141(2) (employee ordinarily working outside Great Britain), and
section 150 and Schedule 12 (death of employee or employer),
any reference to Part II of the 1978 Act includes a reference to paragraph 10 of this Schedule.").
§ The noble Earl said: My Lords, this is a technical amendment. Its purpose is to apply some of the supplementary provisions of the Employment Protection (Consolidation) Act 1978, which will automatically apply to those parts of Schedule 4 which deal with unfair dismissal, to paragraph 10 of the schedule, which deals with the right not to suffer a detriment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 9 [Short title, repeals, commencement and extent]:
Earl Ferrers moved Amendment No. 53:
Page 3, line 17, after ("Schedules") insert ("3").
§ On Question, amendment agreed to.