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Mr. Paul Boateng (Brent, South) : The Opposition are entitled to a wry smile when the hon. Member for Lancaster (Dame E. Kellett-Bowman) berates us for failing to beguile other Conservative Members into voting for the new clause.
We are entitled to a wry smile when the hon. Lady makes that allegation against us, because we are entitled to look to her to use her handbag effectively to ensure that other Conservative Members go through the Lobby with her in support of the new clause. She could begin with her handbag on the hon. Member for Hendon, South (Mr. Marshall)--a man who needs handbagging if any man ever did.
Dame Elaine Kellett-Bowman : I was objecting to the way in which the hon. Member for Wallasey (Ms Eagle) put her argument. If I may say so again, if the shopworkers had not ratted on us at the previous vote we should not have been in this position--and they were on the Opposition side.
Mr. Boateng : We can be forgiven for pulling the hon. Lady's leg a little, because tonight we shall find ourselves in the unusual position of being in the Lobby together. For a moment--the briefest of moments--that makes one rethink one's position, but having done so one continues to be determined to support the amendment, because it goes to the heart of the Bill.
The response of the hon. Member for Hendon, South, the champion of the deregulators, was interesting. He believes that there should be no regulation whatever of the retail or any other trade and last night he went through the Lobby with enthusiasm to vote for deregulating trading on every other day of the week. When the amendment smokes such people out, the real agenda of all too many proponents of the Bill becomes clear. It is to enable those who control the retail trade to be able to pick and choose who they employ.
It has been amazing to watch the Minister throughout the debate and to read what he and his officials have had to say over many months in relation to the proposals of my hon. Friend the Member for Barrow and Furness. It is intriguing that the Government, so wedded to the market, can be so blind to its reality. The reality of the labour market is that people are desperate for work. As my hon. Friend the Member for Preston (Mrs. Wise) pointed out, the reality of the labour market in the retail sector especially is that job applicants are many and there is a constant turnover of staff. At any one time, there is a great pool of applicants looking for work in that sector. Unless we pass the amendment and give those people some protection at least, everything else that we do will count for nothing. In any event, employment protection in the Bill is fraught with difficulties and hazards. Anyone seeking to bring any case before an industrial tribunal for whatever reason suffers a number of hurdles which they must overcome--not least the hurdles of representation, of having to pay for the tribunal in the absence of legal aid and of the burden of proof stacked against the applicant. To deny a whole sector of people who are applying for jobs and who are desperate for protection is a shame and undermines the whole basis of what our deliberations should be concerned with--enshrining and protecting the voluntary element.
What prevents an employer from asking the following question among a number of others on an application form :
"Have you a conscientious objection to working on Sunday?" Under the present Bill, as unamended, there is nothing to stop an employer asking that. If a person answers that question in the affirmative, do those who support the Bill as unamended believe that that person would be employed? It beggars belief.
In response to the explanation by the hon. Member for Hendon, South of his opposition to the amendment, one has to say "get real". Out there, the reality is that there is no way in a million years that one would get the job if one answered affirmatively. The purpose of the amendment is to ensure that those persons who discriminate against an applicant because that applicant has answered in the
Column 318affirmative are brought to book. We must ensure that there is a genuine remedy if the people who have determined their right--it should be a right not to work on Sunday--are discriminated against. If they are discriminated against, those responsible for the discrimination must be made to pay.
If we cannot accept the amendment, all the fine words, pious utterances, hopes and aspirations that we shall hear from Conservative Members will count for nothing.
Mr. Bayley : The Bill was given a Second Reading on the clear understanding that no shopworker would face discrimination if he or she refused to work on a Sunday. That anti-discrimination commitment was not what the Government wanted. They wanted protection for existing shop workers, but no protection for future shop workers. The Government's consultation document in July said :
"The Keep Sunday Special Campaign, the Shopping Hours Reform Council and the Retailers for Shops Act Reform have each made their own separate proposals about the new employment rights which they believe should accompany reform of Sunday trading. All have proposed that both existing and future workers in the retail sector should be protected against victimisation for refusing to work on Sundays. The Government does not believe this is the right approach."
That was the Government's view last summer. They hoped that shopworkers' rights to decline to work on Sundays would wither on the vine as a result of the turnover of jobs. For tactical reasons, the Government sought to make a commitment to people who already worked in shops, but hoped that that commitment would soon disappear. Of course, I acknowledge that the Government have been forced, because of the views expressed in the House and because of the desire expressed by their own Back Benchers, to provide more protection. However, the Government did not want to extend protection to future employees. They did not have their heart in it, but they felt obliged to provide it to enable the passage of partial deregulation through the House.
The point raised by the amendment of my hon. Friend the Member for Barrow and Furness (Mr. Hutton) is crucial. If we do not protect job applicants from discrimination if they do not want to work on Sunday, the protection of shopworkers who have a conscientious objection to working on a Sunday will not be worth the paper on which it is printed. Any person with a conscientious objection to working on Sunday will simply not be employed.
The extension of protection which the Government have offered and which they have used to convince hon. Members--largely Conservative Members--to give the Bill a Second Reading and a fair wind through Parliament will not provide the protection expected. More protection needs to be given--to job applicants, which the amendment seeks to do.
The case put forward by the hon. Member for Hendon, South (Mr. Marshall) was incredible. He asserted that if an employee told an employer that he or she was not prepared to work on Sunday in the full knowledge that making that statement would put him or her at some disadvantage, he would be employed regardless because the consideration of whether the employer would have flexibility to employ him on a Sunday would pale into insignificance beside the fact that the individual had answered the question honestly. One could apply the same argument to an employer asking
Column 319whether somebody had the technical qualifications, or GCSEs or A-levels or the degree for the job. If an employee said that he would like a job as a doctor but did not have the qualifications, would the employer employ him or her on the strength of their honesty? Of course not. That applies to other jobs too. If a shop employer sought somebody who was numerate to count the money in the till and required the employee to have a GCSE in mathematics and the employee said that he did not have that qualification, would the employer consider that it did not matter because, although that person was not the ideal employee, he was honest and he would give him the benefit of the doubt? Of course not.
The hon. Member for Hendon, South suggested that there would never be cases in which people would decline to work on Sunday and, as a result of declining, would be refused a job in retailing. I have received numerous letters from people in my constituency suggesting that that is quite simply not the case. I shall give one example. Rev. Ian Souter of Acomb Methodist church told me :
"I heard of two cases where people applying for jobs in retail outlets in the York area were asked at interview whether they were willing to work on Sundays and when both refused they did not get the job."
The normal expectation of people who honestly tell an employer that they have other things that they would like to do on Sunday will be that they will not get the job.
Conservative Members have said that an amendment that would give protection to potential employees is unworkable. But the people who will have to make it work are the shop owners and the shop owners do not think that it is unworkable. The Government's consultation document states that Keep Sunday Special, the Shopping Hours Reform Council, which represents big multiple chain stores such as Woolworth, Tesco, Sainsbury, B and Q and Comet, and Retailers for Shops Act Reform, which represents the clothes shops, Marks and Spencer and so on, all argued for protection for existing and future employees. Paragraph 20 of the consultation document says :
"The Shopping Hours Reform Council have suggested that people who choose not to do retail work on Sundays should not be discriminated against in recruitment."
Even the people who want deregulation--the Shopping Hours Reform Council-- say that they can work such provision. As they are the people who would have to work it, there is no reason whatever why the Government cannot give them the opportunity of making it work. It will not be an obligation on them : if they feel that it is workable, they will make it work. I hope that the Government will give the shop owners the opportunity to let that happen.
Mr. Peter Lloyd : The amendment and the new clause would prevent a retailer who is seeking to fill a job that involves some Sunday work from ruling out an otherwise qualified applicant simply on the ground that that applicant objected to working on Sunday.
I strongly sympathise with a number of the amendments on the amendment paper and I can see that there is something to be said for most of the amendments that we shall be discussing today--even where I disagree with them. I hope that the hon. Member for Barrow and Furness (Mr. Hutton), who spoke with great clarity and had obviously put a considerable amount of thought into the proposal, will not take it amiss if I say that the present amendment and new clause fall into neither category.
The hon. Members who have spoken and I have a very different perception of the problem that the proposals seek
Column 320to tackle. We differ both over whether it is a problem and over what might reasonably be done about it. It seems to me unreasonable and impracticable to oblige an employer to recruit someone knowing that he is not willing to do the job or part of the job. It is the hon. Member for Brent, South (Mr. Boateng) who has to get real here : it is quite reasonable for an employer to recruit people who want to do the whole job.
The amendment and new clause would require the retailer to ignore the needs of his business, and that is not an obligation that the law should place on an employer. It would mean that an employer would have to choose between his duty to his business--if that involved Sunday working and he wished to employ people who would work on a Sunday--and trying to obey the letter of the law.
Not all retail shops will open on a Sunday and shops that do not will not be particularly interested in whether an applicant wants to work on a Sunday--indeed, they may have to disappoint a prospective shop worker by saying that there is no opportunity for Sunday work, in which case the applicant will either have to choose to do the job without Sunday work or go elsewhere. Moreover, some retailers will open on a Sunday but will not want their staff to work on Sunday : they may want to strike a different balance, or they may already have enough people who are willing to work on Sunday. Where an employer needs to staff his shop for a Sunday, however, it seems to me wholly unreasonable and wholly impracticable to ask him to pass over an applicant who will work on Sunday in order to take one who will not.
Mr. Hutton : The Minister has not understood the impact of the amendment, whose purpose is not to oblige an employer to take someone on but to prevent an employer from using an objection to Sunday working as a reason for not taking someone on. An opt-out from Sunday working is available in respect of existing and prospective employees, but if the Minister does not accept the amendment he will be driving a coach and horses through it because the employer will in effect be able to make Sunday working mandatory in respect of all new and further recruitment. Is not that the reality?
Mr. Lloyd : That is one reason why I am somewhat sceptical about the protections in the schedule--although I have never been unsympathetic to the idea. 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 be 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, circumstances of obligation to other relations or the arrival of children. That is what the protections are intended to achieve. They are not intended to convey to retailers the message that they may open on a Sunday but that they may not open their eyes to the question whether the applicant in front of them is interested in working on Sunday or not.
What the hon. Member for Barrow and Furness asks for is absurd. I understand why he asks for it, however, because what is behind the amendment and his concern is that, if more shops open on Sunday than do at present, more retailers will want to ensure that they can staff their shops on Sunday, so there will be a tendency to look for
Column 321more recruits who will be willing to work on a Sunday. The hon. Gentleman and I do not know how far that tendency will go because none of us can tell how the retail trade will evolve. I am quite certain that all retailers will not want all their employees to be ready to work on Sunday. As I said, I think that some applicants will be disappointed that there will be no Sunday work.
I understand the hon. Gentleman's apprenhension, which is that the retail trade will become a little more like the catering trade, the police, the transport industry, journalism and television--all those other occupations where some Sunday work has to be carried on if those services are to be provided. I do not think that the hon. Gentleman can honestly write such protections into the law because they would place quite unreasonable obligations on employers. Indeed, from the way in which he described the amendment in his intervention, I am not even sure whether he fully supports its meaning. I will not provoke the hon. Gentleman into intervening again. I suspect that we will not reach a joint view of the problem--if it is a problem--or of the solution to it.
The parallels that the hon. Gentleman and others draw with the law outlawing race and sex discrimination are quite spurious. Those laws prevent an employer from rejecting on irrelevant grounds of sex or ethnicity an applicant who can and would do a job perfectly well. The amendment would require an employer to take on an employee who manifestly could not or would not do an essential part of the job. That is why I must ask my hon. Friends to reject it.
Question put, That the amendment be made :--
The Committee divided : Ayes 274, Noes 302.
Division No. 113] [6.00 pm
Adams, Mrs Irene
Ainsworth, Robert (Cov'try NE)
Anderson, Donald (Swansea E)
Anderson, Ms Janet (Ros'dale)
Ashdown, Rt Hon Paddy
Banks, Tony (Newham NW)
Beckett, Rt Hon Margaret
Benn, Rt Hon Tony
Bennett, Andrew F.
Berry, Dr. Roger
Bray, Dr Jeremy
Brown, Gordon (Dunfermline E)
Brown, N. (N'c'tle upon Tyne E)
Bruce, Malcolm (Gordon)
Campbell, Mrs Anne (C'bridge)
Campbell-Savours, D. N.
Clark, Dr David (South Shields)
Clarke, Eric (Midlothian)
Clarke, Tom (Monklands W)
Clwyd, Mrs Ann
Cook, Frank (Stockton N)
Cook, Robin (Livingston)
Corston, Ms Jean
Cunningham, Jim (Covy SE)
Cunningham, Rt Hon Dr John
Davies, Rt Hon Denzil (Llanelli)
Davies, Ron (Caerphilly)
Davis, Terry (B'ham, H'dge H'l)