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The Minister of State, Home Office (Mr. Peter Lloyd) : The burden of proof does not lie on the appellant--the employee ; it lies on the employer. We shall come to that later. The later amendment is unnecessary. What the hon. Gentleman has said--I know that he has read it elsewhere--is wrong.
Mr. Alton : It is not simply that I have read it elsewhere : it is the practice on the ground. If the Minister looks at the case law that is available, he will see that any employee faced with the full weight of an employer is in a vulnerable position. We must bear it in mind that most of the retail industry is not unionised. Of the 2.2 million workers in the retail industry, probably 1.8 million are not in a union and have no real protection.
As the figures that I gave demonstrate, when workers receive a tribunal hearing following all the delays, they are not properly represented and, even if the courts find in their favour, they are not properly compensated. We shall see what the problems of employment protection will be. The Bill is a charter for exploitation.
Britain is taking a retrograde step. Not only will we leave employees more vulnerable, but we shall destroy the one opportunity that many employees in the retail sector have to spend time with their family in their home and community. It would not be right to rehearse all those arguments again. They were heard on Second Reading and
Column 297in other sittings in Committee. The Bill damages employees who like to have time with their families, and places them in a vulnerable position.
The amendment and those which follow try to make a bad situation better. I shall recommend that my right hon. and hon. Friends support them, but we do so in the recognition that, even if we passed every one, workers would still be vulnerable. Conservative Members will tramp through the Lobby to vote each amendment down like a row of skittles. I suspect that we shall be left with an unamended Bill at the end of the Committee stage. Then it will be left to Opposition Members to determine what to do on Report.
The intransigence of the Government, having--
Mr. Alton : I regret that as much as the hon. Lady. I wrote to the Union of Shop, Distributive and Allied Workers expressing my regret that some of their members had changed their view. But in fairness to the hon. Member for Preston (Mrs. Wise)--
Mr. Alton : I was about to provide some employee protection for the hon. Member for Preston, who is the president of USDAW. She has taken an entirely consistent position on the Bill throughout, so what the hon. Member for Lancaster (Dame E. Kellett-Bowman) says is not entirely correct.
The amendment is narrow. The debate that we shall have in the next few hours will rove around the employment protection issues in their many guises. I hope that the amendment will commend itself to the Committee.
Mr. Peter Lloyd : As the hon. Member for Lewisham, Deptford (Ms Ruddock) said, the amendment would include the delivery of goods to a shop in the definition of shop work covered by the schedule. That definition is already wide, as she acknowledged. She asked just how wide it was. All I can say is that all the roles to which she referred as performed in or about a shop would be covered. The definition would include cleaners, storemen, shelf-fillers and trolley supervisors. The hon. Lady particularly asked about trolley supervisors. The definition would also include clerical workers at the back or above the shop or doing work related to the shop. Staff of the shop and staff cafeterias and managers on or about the premises would also be covered.
Column 298As well as the staff who serve customers, all those people will be covered, and I believe that van drivers based at the store, who deliver goods to customers, would also be included. In fact, all those whose work is connected with and for a shop that decides to open on a Sunday will be covered.
I hope that my remarks will help the hon. Member for Deptford and her hon. Friends with the probing part of the amendment.
Several hon. Members rose --
Ms Glenda Jackson (Hampstead and Highgate) : The Minister referred to deliveries to a shop. We all know of the large superstore chains, which have large lorries carrying their brand name on the side. I am concerned about smaller shops which are perhaps contracted out as part of a chain of deliveries. If I understood the Minister correctly, those drivers who have to work on Sunday, delivering to six shops that are owned and managed by different people, will not be covered.
Mr. Lloyd : I may have inadvertently misled the hon. Lady, or I did not make myself clear. When I referred to van drivers, I meant those drivers based at shops who deliver to their customers, and not drivers delivering goods to shops for onward sale. If she meant the latter, they are not covered, but I shall come to that in a moment. I think that there were other potential interventions.
Mr. Alfred Morris (Manchester, Wythenshawe) : It has been put to the Minister, Mr. Morris, that we are determining the conditions of employment not only for people who work in the retail trades but for many others, not least local authority workers, cleansing workers, bank employees, bus drivers and other people who work in public transport. The Minister really must address himself to what has been a theme in Opposition Members' speeches--that the issue is much wider than the Government have so far addressed.
The schedule covers those people who work in and about a shop ; it does not cover people employed by other agencies or authorities. Some part of their work on a Sunday may have to do with a shop opening. For example, if a policeman is on duty, a tiny part of his work--perhaps an infinitesimal part--might have something to do with a shop being open, but by and large a policeman is on duty for the whole range of public order reasons.
It would therefore be absurd if the police were covered, and the same is true for health inspectors, local authority workers and traffic wardens. It is not reasonable that they should be covered, or for hon. Members to imply that, in 99 cases out of 100--or more probably 999 out of a 1,000--their work will have anything to do with the Sunday opening allowed by the Bill.
For example, if health workers and cleaners are involved, it is most likely to be in catering establishments and fast food outlets, which can already open on Sundays quite lawfully. The right hon. Gentleman's suggestion is not worthy of greater scrutiny as these people will be on duty not because a particular shop decides to open but
Column 299because of a wide range of responsibilities, only a tiny proportion of which have anything to do with Sunday opening.
Mr. Alfred Morris : How can the Minister possibly doubt that many people who are not employed in retail trades will now, for the first time ever, have to work on a Sunday? He says that the number will be tiny, but we are talking here about principles as well as numbers. These principles are very important to all Opposition Members.
Mr. Lloyd : Retailing is the only activity that, in large measure, may not be legitimately engaged in on a Sunday. The people who work in factories that make goods for the shops may work on Sunday. Many of them have an evening shift. When I worked in the food industry, we always had a Sunday evening shift. There will be no change in that situation. The hon. Gentleman exaggerates very heavily.
Mr. Lloyd : Many car parks are open on a Sunday. If a local authority were to decide to charge for Sunday use of its car parks, it would have to recruit people. In fact, local authorities do recruit people for this purpose, irrespective of Sunday trading. I see here the intervention of no novel principle.
Mrs. Audrey Wise (Preston) : I should like to come back to the question of delivery workers. It seems to me that there is fundamental illogicality in what the Minister has said so far, and I hope that he will remedy it.
He has said that a person employed by a shop to deliver goods to its customers will be covered. The hon. Gentleman must know that that is now a very rare service. The number of drivers so employed will be tiny--the Minister is keen on the word "tiny"--whereas the number of people delivering to shops may be very large indeed. It is quite clear that the latter would not have to be employed if the shops were not open. Can the Minister explain his reasoning? I hope that, in the rest of his speech, he will do better.
Mr. Lloyd : I had not reached the question of drivers who deliver to shops. The hon. Lady is quite right in saying that the number of delivery drivers employed by shops is very small. I have mentioned these people for the purpose of establishing even a minute piece of common ground between the hon. Member for Deptford and myself about the major part of the hon. Lady's amendment.
It would not be reasonable to extend the provision to drivers working for another company who deliver goods to a store but who do not, by any stretch of the imagination, work at or around the store. As the hon. Lady said, we should have the anomally that a driver making Monday's deliveries on a Sunday to a shop that opened on a Sunday would be included, whereas a driver making Monday's deliveries on Sunday to a shop that did not open on Sunday would not be covered.
The employers of the delivery driver would never know where they were. Even if the amendment were taken away and revised to remove some of the confusion, there would remain the fact that the relationship between employer and employee would depend not on their negotiations or decisions but on whether one or other of a string of
Column 300customer stores decided to open on Sunday. The position could vary from week to week, without the knowledge of the employer or even of the employee.
The hon. Lady mentioned the delivery of fresh goods. These are delivered not just to the supermarkets and grocery shops that will be affected by this legislation but also to restaurants and catering outlets that are currently allowed to open on Sunday.
I wonder whether the hon. Lady intends the protection under this Bill to apply if a delivery driver's journey includes one shop that chooses to open. Which will govern the relationship of the driver to his employer--the one shop opening under this Bill, the others that remain shut, or the ones that have always been allowed to open and are not affected by the legislation?
Ms Eagle : Does the hon. Gentleman agree that he has just begun to touch on some of the anomalies that we are coming across because we are attempting in this complex web of legislation to give a very narrow group of workers protection, when many other people work on Sunday, and, in my view, should be guaranteed similar protection? Would it not be better to withdraw the entire Bill and return to the House with a Bill that gives thorough and complete protection to all workers, whether they work part- time or full-time, during the week or on Sundays.
Mr. Lloyd : Withdrawing the Bill would cause enormous disappointment not merely to the majority in the House who voted for this solution to the Sunday trading problem but to the retail trade and the many, many people who work on Sundays and would like their position to be completely regularised, with the protections contained in the Bill.
The hon. Lady talks of anomalies. I, too, am discussing anomalies, which inevitably arise when protections are provided. All I can say is, were we to accept this amendment, those anomalies would be greatly increased, in the ways that I have described and in others.
Mr. Geoffrey Hoon (Ashfield) : May I take the Minister back to the problem of deliveries? He has conceded that a driver who delivers from a shop--most of us agree that the problem would arise in the context of small supermarkets rather than large superstores--would be covered by the definition under schedule 4. But what happens if the same driver is also engaged in collecting goods from a warehouse or elsewhere, as could easily happen in such a shop? Would not that open up the difficulty which the Government are trying to avoid?
Mr. Lloyd : I am in no difficulty whatever. It would be for the courts to determine where the borderline lay. But if the driver worked in and around a shop that opened on Sundays and was partly delivering to customers and partly collecting goods from a cash-and-carry or central warehouse, I believe that he would be covered by the protections provided in schedule 4. Ultimately, if the matter came before a court, it would be for the court to decide. I can only give my best judgment.
Of course there are anomalies. It is anomalous to protect one group of workers in this way, but the hon. Gentleman knows why we are doing it. Sunday work has always been treated differently and, compared with the Shops Act 1950,
Column 301we are fundamentally changing the rules on Sunday working. The only way to get rid of those anomalies is to protect every other worker. If the hon. Gentleman is suggesting that train drivers, doctors, nurses and policemen should all have similar protection, that might rule out the theoretical anomalies, but such huge practical difficulties would arise that the hon. Gentleman would wish that he had never embarked on that course.
Mr. Grocott : Does the Minister acknowledge the deep alarm that is felt on this side of the House when a smiling Minister speaks at the Dispatch Box, with the authority of the Government, about a schedule headed "Rights of workers"? In so far as the schedule provides a minuscule protection, will he confirm that the Government are offering that protection with the sole objective of getting the legislation through? Is it not absolutely abhorrent to the Government's fundamental instincts, which are to provide no protection for workers whatever?
Mr. Lloyd : I disagree with the hon. Gentleman on both points. First, the protection is not minuscule : it is wide, radical and sweeping. We shall return to that matter later. Secondly, as the Minister guiding the Bill, my objective is to find workable arrangements for the combination of Sunday trading and employee protection that satisfy a majority in the House. In that way, the problems with which the trade, Sunday workers, and those who wish to shop on Sundays are fed up can be sorted out in a clear and enforceable way.
Mr. David Clelland (Tyne Bridge) : On the point about testing these issues in court, will the Minister explain where a van driver working in the retail trade is supposed to find the money to test the issue in court?
Mr. Lloyd : I dare say that the unions would be interested in the general issues of principle. If it is a question of testing it from his own interest in a tribunal, he does not need money for that. I was going to come to that later.
The hon. Member for Liverpool, Mossley Hill (Mr. Alton) talked about how long it took to get to a tribunal, how difficult it was to be represented and how the employee seldom won. He should know that two thirds of cases are decided before they get to a formal tribunal hearing, because the employer and employee have settled ; they would settle when the employee realised that perhaps he had breached the rules.
We do not know the details of every case that has been settled, but the fact that two thirds are settled beforehand suggests to me that the law works well. If the hon. Gentleman looks at the statistics for 1991--I do not have them to hand at the moment--he will find that, of those who did go to a tribunal, there was a greater success rate among those employees who had attended without formal representation, either with a friend or on their own accord, than those who had secured professional and full representation, which suggests to me that tribunals work well informally, look behind the case that is brought and are not particularly impressed by professional representation.
Column 302particularly assist the Minister, because it is highly unlikely that a settlement would involve the continuation of that person's employment. Almost every settlement involves the payment of compensation. Therefore, in effect the Minister is saying that it does not matter that the person does not wish to work on a Sunday, that the settlement will resolve that matter and that the employer would pay a modest amount by way of compensation--the settlement figures are very modest. In those circumstances, the company would in effect avoid the problem of employing somebody who chose not to work on a Sunday.
Mr. Lloyd : I venture into a subject for which I do not have ministerial responsibility, so my familiarity with the figures and the detailed background is not great. The hon. Gentleman may correct me if I am wrong, as may the officials in the box, but I believe that, in the majority of unfair dismissals, the employee does not want to go back to that place. Only a minority of employers are uninterested in whether they lose a case or settle out of court. The fact that the rules are there and can be enforced has a salutary effect. One should not judge the effectiveness of the rights or the tribunal by cases that are settled by it. One should judge the effect that it has further down the line and on the behaviour of employers. I think that that will be true in this case.
By the way that it is worded, the amendment would have a wider effect than the hon. Member for Deptford appeared to have intended, but not wider than many of her hon. Friends would have liked. The phrase
"any work in connection with the delivery of goods"
could stretch, as the right hon. Gentleman wanted, to traffic wardens and police overseeing the parking regulations near the shop. One must then ask whether it would affect them if five minutes of their 10-hour shift were related to parking that had something to do with the shop. The amendments should be more clear on whether that is so. It would be ridiculous if it were. I hope that the right hon. Gentleman is getting up to tell me that he had no intention of suggesting anything quite so absurd.
Mr. Alfred Morris : The Minister does not accept that any group of workers outside the retail trade will, for the first time, have to work on Sundays as a consequence of legalising the Sunday opening of shops. If he can be convinced that there will be other groups of workers who for the first time will have to work on Sunday, will he then accept that they should have the same protection that we are seeking as retail shop workers?
Mr. Lloyd : I think that the right hon. Gentleman is in error. If some workers are not currently working on Sundays, such work is not part of their jobs, and will not be in their contracts. If their employer wants them to work on Sundays, he cannot make them do so ; he cannot break or change their contracts unilaterally. He may open negotiations, but it will then be up to both sides to agree. This is no different from a hundred and one other changes that an employer may wish to make--introducing evening working, for instance. That is where the protection lies.
Ms Eagle : Is the Minister aware of the increasing prevalence of contracts that do not specify when work will be required--"zero hours" contracts, for instance? Many employees in the non-retail sector may be forced to work on Sundays, with no requirement for a change in their
Column 303contracts. Such contracts, which do not establish the hours that should be worked or when they should be worked, are virtually a sham.
Mr. Lloyd : I am aware that some people have no written contracts, and that some written contracts are completely inadequate to describe the nature of the job involved. If it came to a dispute, and if that dispute went to court--which would be the last place along the line--it would be for the court to determine what was properly understood between employer and employee.
It would constitute a change of contract if there had originally been no question of Sunday working, and the employer was now asking for a whole set of different arrangements--even if there was nothing in writing, or the contract required the employee to "attend the place of employment at the usual time".
The hon. Member for Wallasey (Ms Eagle) has entered a vexed area. The Bill cannot make up for the inadequacy of contracts elsewhere ; the problem that we are discussing, however, relates not to the vagueness of some contracts, but to contracts that clearly require an employee to work on Sundays if Sunday working is necessary. Employees may enter into such a contract believing that they will never be asked to honour the agreement.
I believe that the provisions in schedule 4 are very wide, in that they cover all workers associated with the work of a shop on or around that shop's premises. They do not extend to delivery drivers, and I do not believe that they should. I hope that the Committee will agree.
Ms Ruddock : Replying to the hon. Member for Lancaster (Dame E. Kellett-Bowman), the Minister made it clear that he did not consider car park attendants to be associated with the company providing the retail premises. Some car parks, however, are organised by the retail premises. I assume--the Minister nods helpfully--that their attendants are covered by the Bill in its present form.
My hon. Friends and I fear that many workers would have to undertake new tasks if the Bill became law. My hon. Friend the Member for Wallasey (Ms Eagle) is absolutely right : what we need, and what the Government have constantly and pitifully refused to give us, is proper protection for all workers, so that they can exercise real choice and real control over the way in which employers institute and enforce contracts.
The Minister has made a great deal of the point about anomalies. All he has done, however, is encourage us to reconsider our amendment, engage in consultation and bring it back on Report. It is clear to us that some workers' contracts, and the requirement for Sunday working, will be fundamentally rearranged as a consequence of the Bill--which would not happen in any other circumstances.
That applies particularly to an instance that the Minister has not considered : the case of workers employed by a company--Sainsbury is a good example--which has its own delivery vehicles and drivers, and delivers its own goods from its own warehouses to its own stores. Deliveries of fresh goods resulting from the introduction of Sunday opening would be a specific result of the Bill's enactment : in every other respect, those workers are working for the same employer, while performing tasks that could arise only if the Bill became law. We shall want to press our case further ; but, on this occasion, I shall not press it to a Division. I beg to ask leave to withdraw the amendment.
Column 304Amendment, by leave, withdrawn.
section (Discrimination against prospective employees who object to Sunday working) and'.
(1) Subject to subsection (2) below, it is unlawful for a person ("the discriminator") in relation to employment by him at a shop to discriminate against any person seeking employment as a shop worker ("the applicant")
(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or
(b) in the terms in which he offers the applicant that employment, or
(c) by refusing or deliberately omitting to offer the applicant that employment,
on the ground (or, if more than one, the principal ground) that the applicant objects to working on Sunday.
(2) Subsection (1) above does not apply to employment as a shop worker only on a Sunday ("Sunday-only work").
(3) A complaint by the applicant that the discriminator has committed an act of discrimination against the applicant which is unlawful by virtue of subsection (1) above may be presented to an industrial tribunal.
(4) An industrial tribunal shall not consider a complaint under subsection (3) above unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.
(5) Where an industrial tribunal finds that a complaint presented to it under subsection (3) above is well founded the tribunal shall make such of the following as it considers just and equitable (a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates, and
(b) an order requiring the respondent to pay to the complainant compensation not exceeding the limit for the time being imposed by section 75 of the Employment Protection (Consolidation) Act 1978. (6) Where an advertisement is published which indicates or might reasonably be understood as indicating that the employment to which the advertisement relates is open only to a person who is willing to accept a requirement to do shop work on Sunday and the employment in question is not Sunday-only work, a person who is unwilling to accept that requirement and who seeks and is refused employment to which the advertisement relates, shall be presumed to have been refused employment for that reason.
(7) A person shall be taken to be refused employment if he seeks employment as a shop worker (other than Sunday-only work) with a person and the prospective employer
(i) refuses or deliberately omits to entertain and process his application or enquiry ;
(ii) causes him to withdraw or cease to pursue his application or enquiry ;
(iii) refuses or deliberately omits to offer him employment ; (iv) makes him an offer of such employment, the terms of which are such as no reasonable employer who wishes to fill the post would offer and which is not accepted ; or
(v) makes him an offer of such employment but withdraws it or causes him to not accept it.
(8) Where a person is offered employment on terms which include a requirement to do shop work on Sunday, such an offer shall be accompanied by a written notice of the person's rights to opt out of shop work on Sunday, under paragraph 4 of Schedule 4 below and subsection (9) below.
(9) Where a person is offered employment on terms which include a requirement to do shop work on Sunday, that person
Column 305may give to the prospective employer at any time prior to accepting employment with that person written notice that he objects to doing shop work on Sunday and if the offer is subsequently withdrawn by the prospective employer it shall be presumed to be by reason of the person's refusal to do shop work on Sunday.
(10) When a person who has given notice under subsection (8) above commences employment, the provisions of Schedule 4 below shall apply to his employment as if he were a protected shop worker.
(11) In section 136 of the Employment Protection (Consolidation) Act 1978 (appeals from industrial tribunals to Employment Appeal Tribunal) in subsection (1) after paragraph (g) there shall be inserted the words
"(h) the Sunday Trading Act 1994.".'.
Amendment No. 41, Title, line 2, after workers', insert and applicants for employment as shop workers'.