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Column 325Taylor, Sir Teddy (Southend, E)
Thompson, Sir Donald (C'er V)
Thompson, Patrick (Norwich N)
Thornton, Sir Malcolm
Townend, John (Bridlington)
Townsend, Cyril D. (Bexl'yh'th)
Twinn, Dr Ian
Waldegrave, Rt Hon William
Walker, Bill (N Tayside)
Wardle, Charles (Bexhill)
Wiggin, Sir Jerry
Young, Rt Hon Sir George
Tellers for the Noes :
Mr. Andrew MacKay and
Mr. Derek Conway.
Question accordingly negatived.
(aa) the reasons the relations ceased to be so governed was that the employee was dismissed and the dismissal was unfair within the meaning of Part V of the Employment Protection (Consolidation) Act 1978'.
As published, the Bill does not expressly cover those who may be unlawfully dismissed before the date of enactment and subsequently reinstated or re- engaged. In the case of people who are unlawfully dismissed, such reinstatement does not happen very often. Nevertheless, the Bill as printed puts question marks over whether it would cover such people, through the rules of reinstatement and re-engagement. We have tabled the amendment to give the Minister an opportunity to tell us whether that is the case.
Mr. Peter Lloyd : I can understand why the hon. Member for Rother Valley (Mr. Barron) and his hon. Friends have tabled the amendment. If I follow what the hon. Gentleman said and what the amendment appears to do, the fear is that a ruthless employer could deprive employees of their right to protective status by dismissing them the day before, or shortly before, the schedule comes into effect, and re-employing them afterwards.
I doubt very much whether there is any prospect of that. However ruthless an employer is, he will know that his technically new employees will be able to opt out lawfully in three months. He will have gained very little, except to put himself at risk of having to pay compensation for the earlier unfair dismissals, should they be taken to a tribunal.
The employee has further protection in that, whatever was agreed verbally or in writing before the schedule, the employee will enjoy the protected right not to work on Sunday from day one. That reminds me of a case to which the hon. Member for Liverpool, Mossley Hill (Mr. Alton) referred a couple of debates back.
I do not believe that there is any need for the amendment, but I can imagine the hon. Gentleman asking why the Government do not simply accept it. My reply would be that, apart from the legislator's normal and sensible instinct not to overload Acts with unnecessary provisions, I believe that the amendment, as currently phrased, would extend the status of protected shopworker to anyone who had been unfairly dismissed from shop work for anything connected with Sunday working. That
Column 326would be the case even if the dismissal had occurred years ago, and compensation had been paid to an individual who might have embarked on a different form of livelihood.
I do not think that there are any loopholes, but I will look at the matter again. If the hon. Member for Rother Valley or any of his hon. Friends want to come and discuss the point or any specific worry that I have not covered, I shall be happy to talk to them. Like them, I want the protections provided in schedule 4 to be real and effective, without any loopholes.
Amendment, by leave, withdrawn.
that he wishes to work on Sunday or'.
This is a small change, but it is worth remarking upon. Amendment No. 67 is designed to remove the possibility of a doubt arising from the wording of the opting-in notice. It does not affect the rights and protections in the schedule, but it should help to avoid possible confusion in future and make it clear that the individual who opts into Sunday work wants to work.
Amendment agreed to.
(whether or not he has previously given an opting-in notice).'.
(2A) It shall be the duty of an employer to give any person to whom this paragraph applies written notice of his right to object to Sunday working before requiring him or seeking to require him to work on Sunday at any time after the commencement date.'.
No. 45, in page 17, line 37, at end insert--
(2B) The statement of employment particulars given to any shop worker to whom this paragraph applies shall include a statement of the right under this Act to refuse to work on Sunday.'
No. 46, in page 17, line 39, at end insert
and "statement of employment particulars" means the statement required by section 1 of the 1978 Act'.
No. 47, in page 17, line 39, at end insert--
4A. It shall be a duty of an employer of any shop worker to keep displayed at all times in a place to which the shop worker has reasonable access a statement of the rights of shop workers under this Act to object to Sunday working and the means by which they may do so,'
No. 48, in page 18, line 27, at end insert
and (c) no subsequent opting-out notice has been given'. No. 49, in page 18, line 27, at end insert--
5A. An employer who receives an opting-in notice from a shop worker shall, within five days of receipt of that notice or before asking him to do shop work on Sunday or on a particular Sunday, whichever is the earlier, give to that shop worker a statement of his right to object to Sunday working and how to exercise that right, and a summary, in plain language, of the provisions of this Schedule as they relate to protected shop workers and opted-out shop workers.'
Mr. Barron : Amendment No. 44 is a probing amendment. We should like to know exactly how far people can go in opting in or out of Sunday working. There seems to be little flexibility in the Bill. Someone who agreed to start working on a Sunday might change his mind at some later stage in his life, perhaps for religious or family reasons, and want to opt out of his obligation under the Bill.
Column 327The subsequent amendments in the group would give people the right to know their status and what they can and cannot do under the legislation. It is interesting that the two bodies that have argued over many months, if not years, about how Sunday trading should operate--that is, the Shopping Hours Reform Council and Keep Sunday Special --are like-minded in that they believe that those who are in Sunday employment should have the right to know exactly what it entails.
Some of the amendments in the group require that employees be given written notice of their right to object. One amendment would put that right in their contract of employment under the 1978 legislation. Another would require--alternatively or perhaps even concurrently--that employees' rights should be displayed in their workplace. Many people at work are ignorant of their rights if those rights are not put in front of them. It seems that employers on both sides of the argument do not disagree with the purpose of the amendments.
I should be interested to know what the Minister has to say and whether he believes that some form of right to know could be included in the Bill so that people who work on Sundays can exercise their right to opt out if they want to do so at some stage.
Mr. Peter Lloyd : Amendments Nos. 44 and 48 make explicit what the schedule is designed to deliver--a shopworker will be free to opt out of Sunday working, even if he has previously stated his willingness to work on Sundays by signing an opting-in notice. That can happen over a period in a person's shops career according to changes in his home needs, circumstances, conscience or other matter.
I do not believe that the amendments are strictly necessary because the schedule already provides for what they would achieve. However, like the hon. Member for Rother Valley (Mr. Barron), I am keen that there should be no shadow of doubt that the rights are complete and cannot be encumbered. For once, exceptionally, I believe that it would be desirable to make the Bill so explicit that it ensures that there is no doubt in anyone's mind from the start.
I cannot accept the wording of the amendments. The hon. Gentleman will understand that draftsmen have slightly different ways of doing these things. However, I want to reach the objective that the hon. Gentleman wants to reach and to put it on the face of the Bill that the opportunity exists, as the hon. Gentleman believes that it should, and as the schedule certainly delivers, to opt out after once opting in and then to opt in again and opt out. A person's rights are not taken away if they are used once. I want that to be clearly understood.
Amendments Nos. 38, 45, 46, 47, and 49 are designed to ensure that retail employees are aware of their new rights. I share that objective. The right to opt out is radical and comprehensive but unusual and it will not always be fully taken on board by workers, even after the Bill has been on the statute book for some time. I do not guarantee, as I did for amendments Nos. 44 and 48, to adopt the intention of the amendments. I should like to study them more fully. I have not had long to study them. I should like to consider how best, and at what point, employers should be required to inform their staff of their rights under the schedule.
I aim to introduce a new amendment or set of amendments on Report. I want to meet the gist of what the
Column 328hon. Member for Rother Valley wants to do. As he said, there are various amendments in the group. I should like to look at them more closely. I hope that I have satisfied him that my aim is not dissimilar from his. I hope that that is sufficient to persuade the hon. Gentleman not to press the amendment to a vote.
Mr. Alton : I thank the Minister for his reply to the hon. Member for Rother Valley (Mr. Barron). I share the sentiments expressed by the Minister and by the hon. Gentleman and those expressed in the amendments. The basic right of workers to know their entitlements and their right to protection is an obvious one. The Minister has been reasonable in his response to the amendments. I hope that he will ask his officials to draft amendments that concur with the spirit of what is sought in the amendments- -the basic right to know--and that he will come back on Report or in another place determined to do that. The amendments are a much-needed improvement to the Bill. I am grateful for the tone that the Minister has adopted in answering the debate.
Rev. Martin Smyth (Belfast, South) : I share hon. Members' welcome of the Minister's statement, but I wish to press him on the issue. It is not enough to have a provision in the schedule. We are all aware of the difficulties of reading the small print. The average worker would not be in a position to read it. The employer may do so. It is important that, whatever happens, the employees' rights should be displayed in a public place so that the worker may know his or her rights, just as those of us who employ staff have to display in a public place a certificate of insurance to assure workers of their rights.
Mr. Barron : I thank the Minister for his words about the amendments, which I take in the spirit that he said them. I am aware of the intricacies of drafting. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Barron : I said earlier that there was common agreement between the two competing campaigns--Keep Sunday Special and the Shopping Hours Reform Council--on the purpose of the previous group of amendments. My hon. Friends and I take the problem of notification seriously. The Keep Sunday Special campaign and the Shopping Hours Reform Council agree with the amendments and I hope that we can also get some agreement between Government and Opposition.
I shall not go into detail about the reasons for the amendments, except to quote a notice that other hon. Members will have received from the Shopping Hours Reform Council which states :
"We believe that three months is too long a period. It opens the door to the occasional rogue employer to threaten an occasional Sunday worker with having to work every Sunday for three months if they opt out."
Under the circumstances, it seems that that could happen and I have no doubt that some people will say that it will happen if the Bill is enacted in its present form.
Column 329One month's notice is not unreasonable. In my experience--before I came to the House--Sunday work is normally done by agreement. If it is reasonable and practicable in most cases to shorten the amount of notice from three months to one month, that would allow us to prevent employers from forcing people to work every Sunday for three months. Therefore, I hope that the Minister will take the amendments seriously. I hope that both sides of the Committee will agree to accept the amendments, or something broadly similar, so that we can ensure that employers are not allowed that opportunity.
Mr. Alton : As the Bill stands, shopworkers engaged to work on Sundays may give three months' written notice to their employers that they no longer wish to do so. At the end of that time, an employee who has given such notice would no longer be obliged to work on Sundays and would acquire protected employee status under the Bill. As the hon. Member for Rother Valley (Mr. Barron) said, we must ask ourselves why the Government set a three-month notification period. Their reason is unclear. At best, it is random, irrational and has no real justification. At worst, such a long period--far longer than is necessary to serve the stated purpose--would give too great an opportunity to employers to coerce employees to work on Sundays, or even to dismiss them for refusing to do so.
The amendment would reduce the statutory period of notice from three months to one month. A one-month period represents a better balance between the interests of shop owners and shopworkers and hon. Members on both sides of the Committee would be well advised to accept it.
From the shop owners' point of view, one month is more than enough time for them to reorder their staffing schedules. From the shopworkers' point of view, one month is a far more reasonable period to have to wait to stop working on Sundays. The inconvenience of a one-month period is minimal for employers, but the inconvenience to employees of a three-month period would be considerable.
There are many valid and important reasons why an employee may suddenly no longer want to work on Sundays. An employee's child, spouse or elderly relative may fall sick and need extra care at the weekends, or he or she may wish to join a sports team or social club which has its main event on a Sunday.
I am sure that hon. Members can think of many other legitimate reasons why employees may wish to stop working on Sundays as quickly as possible when their circumstances change. Putting that inconvenience to one side, a three -month wait may have more serious implications for an employee. Three months is a long time to have to resist the pressure and thinly veiled threats that will inevitably come from employers who will want all their staff to co-operate with their new Sunday opening patterns. A one-month period would mean that far fewer employees would cave in to that sort of improper pressure. It is only right and fair that employees wishing to exercise their right not to have to work on Sundays should have to wait only as long as is necessary for their employer to rework the staffing schedule. One month is as long as is necessary. A one-month period of notice will protect the
Column 330rights of employees without harming the interests of employers. The amendment is good and sensible for all concerned and it ought to commend itself to the Committee.
In conclusion, I shall give some evidence for the need for employee protection. A survey of the growth of Sunday trading in Scotland, called "Scotland's Sunday under Pressure", was carried out by R. P. Lang in March 1989. It found that employees in one in four shops had no choice about Sunday working.
We also have evidence from New Zealand, where Sunday trading was legalised in 1990. The New Zealand legislation contained--as does the Bill--several employment protection guarantees, including the provision that workers could not be forced to work on Sundays and that dismissal on such grounds could be the subject of an unfair dismissal action.
Professor Peter Brosnan, formerly reader in labour economics at the Victoria university of Wellington, has reviewed the outcome in a paper called "Liberalising Shop Trading Hours, the New Zealand Experience, 1990". He says :
"The protections in the Act do not amount to much. Sunday trading has not become a matter of choice for workers. When a worker applies for a job in the retail industry, they are asked whether they will be prepared to work on weekends. Workers know they will only be offered the job if they say they are prepared to work There are subtle pressures on established workers to work on weekends, too. Employers make appeals to company loyalty ; not being prepared to work on weekends is a sign of disloyalty' There is also the strong feeling of letting down one's co-workers. If the others do not want to work on Sundays, it seems selfish to refuse and increase the number of Sundays that others are forced to work."
There are pressures in the workplace and there will be greater pressures as a result of the Bill becoming an Act. It is therefore incumbent on us to do all that we can to protect those people who do not wish to work on a Sunday.
The amendment is reasonable and I hope that the Minister--in the same spirit that he showed when dealing with the last group--will accept it or will be prepared, if necessary, to return with his revised version on Report or in another place.