House of Commons Hansard Debates for 5 Apr 1995

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(4) Subject to sub-paragraph (5) below, the prescribed form is as follows--

"Statutory Rights in Relation to Sunday Bar Work--

You have become employed under a contract of employment under which you are or can be required to do Sunday bar work during previously restricted hours, that is to say, work serving drinks on a Sunday between the hours of 3 p.m. and 7 p.m.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to do Sunday work during previously restricted hours once three months have passed from the date on which you gave the notice. Your notice must--

be in writing;

be signed and dated by you;

say you object to doing Sunday bar work during previously restricted hours.

For three months after you give the notice, your employer can still require you to do all the Sunday bar work your contract provides for. After the three month period has ended, you have the right to complain to an industrial tribunal if, because of your refusal to do Sunday bar work during the previously restricted hours, your employer--

dismisses you, or

does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to do Sunday bar work during the previously restricted hours or that you do not object to doing such work and then agreeing with your employer to do such work on Sundays or on a particular Sunday."

(5) The Secretary of State may by order amend the prescribed form set out in sub-paragraph (4) above.

(6) An order under sub-paragraph (5) above shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Effect of rights on contracts of employment

12.--(1) Any contract of employment under which a bar worker who satisfies the conditions in paragraph 2(2)(a) and (b) above was employed on the day before the commencement date is unenforceable to the extent that it--

(a) requires the bar worker to do bar work on Sunday during the previously restricted hours on or after the commencement date, or (b) requires the employer to provide the bar worker with bar work on Sunday during the previously restricted hours on or after that date.

(2) Except as provided by sub-paragraph (3) below, any agreement entered into after the commencement date between a protected bar worker and his employer is unenforceable to the extent that it (a) requires the bar worker to do bar work on Sunday during the previously restricted hours, or

(b) requires the employer to provide the bar worker with bar work on Sunday during the previously restricted hours.

(3) Where, after giving an opting-in notice, a protected bar worker expressly agrees as mentioned in paragraph 3(1)(b) above (and so ceases to be protected), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

(4) The reference in sub-paragraph (2) above to a protected bar worker includes a reference to an employee who, although not a protected bar worker for the purpose of that sub-paragraph at the time when the agreement is entered into, is a protected bar worker on the day on which she returns to work as mentioned in paragraph 10 of Schedule 13 to the 1978 Act (maternity).

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13.--(1) Where a bar worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it--

(a) requires the bar worker to do bar work on Sunday during the previously restricted hours after the end of the notice period, or (b) requires the employer to provide the bar worker with bar work on Sunday during the previously restricted hours after the end of that period.

(2) Except as provided by sub-paragraph (3) below, any agreement entered into between an opted-out bar worker and his employer is unenforceable to the extent that it--

(3) Where, after giving an opting-in notice, an opted-out bar worker expressly agrees as mentioned in paragraph 5(5)(b) above (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

(4) The reference in sub-paragraph (2) above to an opted-out bar worker includes a reference to an employee who, although not an opted-out bar worker for the purposes of that sub-paragraph at the time when the agreement is entered into, had given her employer an opting-out notice before that time and is an opted-out bar worker on the day on which she returns to work as mentioned in paragraph 10 of Schedule 13 to the 1978 Act (maternity).

14. If--

(a) under the contract of employment under which a bar worker who satisfies the conditions in paragraph 2(2)(a) and (b) above was employed on the day before the commencement date, the employer is, or may be, required to provide him with bar work for a specified number of hours each week,

(b) under that contract, the bar worker was or might have been required to work on Sunday during the previously restricted hours before the commencement date, and

(c) the bar worker has done bar work on Sunday during the previously restricted hours in that employment (whether or not before the commencement date) but has, on or after the commencement date, ceased to do so,

then, so long as the bar worker remains a protected bar worker, that contract shall not be regarded as requiring the employer to provide him with bar work on weekdays in excess of the hours normally worked by the bar worker on weekdays before he ceased to do bar work on Sunday during the previously restricted hours.

15.--(1) If--

(a) under the contract of employment under which a bar worker who satisfies the conditions in paragraph 2(2)(a) and (b) above was employed on the day before the commencement date, the bar worker was or might have been required to work on Sunday during the previously restricted hours before that date,

(b) the bar worker has done bar work on Sunday during the previously restricted hours in that employment (whether or not before the commencement date) but has, on or after the commencement date, ceased to do so, and

(c) it is not apparent from the contract what part of the remuneration payable, or of any other benefit accruing, to the bar worker was intended to be attributable to such work,

then, so long as the bar worker remains a protected bar worker, that contract shall be regarded as enabling the employer to reduce the amount of remuneration paid, or the extent of the other benefit provided, to the bar worker in respect of any period by the proportion which the hours of bar work which (apart from this Schedule) the bar worker could have been required to do on Sunday during the previously restricted hours in the period (in this paragraph

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referred to as "the contractual Sunday hours") bears to the aggregate of those hours and the hours of work actually done by the bar worker in the period.

(2) Where, under the contract of employment, the hours of work actually done on weekdays in any period would be taken into account in determining the contractual Sunday hours, they shall be taken into account in determining the contractual Sunday hours for the purposes of sub-paragraph (1) above.

Proceedings for contravention of paragraph 10

16. Sections 22B and 22C of the 1978 Act (which relate to proceedings brought by an employee on the ground that he has been subjected to a detriment in contravention of section 22A of that Act) shall have effect as if the reference in section 22B(1) to section 22A included a reference to paragraph 10 above.

Restrictions on contracting out of Schedule

17.--(1) Any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports-- (a) to exclude or limit the operation of any provision of this Schedule, or

(b) to preclude any person from presenting a complaint to an industrial tribunal by virtue of any provision of this Schedule. (2) Sub-paragraph (1) above does not apply to an agreement to refrain from presenting or continuing with a complaint where-- (a) a conciliation officer has taken action under section 133(2) or (3) of the 1978 Act (general provisions as to conciliation) or under section 134(1), (2) or (3) (conciliation in case of unfair dismissal) of that Act, or

(b) the conditions regulating comprise agreements under the 1978 Act (as set out in action 140(3) of that Act) are satisfied in relation to the agreement.

Transitional modifications relating to maternity cases

18.--(1) Where--

(a) an employee exercises a right to return to work under Part III of the 1978 Act (maternity), and

(b) because amendments of that Part made by the Trade Union Reform and Employment Rights Act 1993 (in this paragraph referred to as "the 1993 Act") do not have effect in her case, her right is a right to return to work in the job in which she was employed under the original contract of employment,

the preceding provisions of this Schedule shall have effect subject to the modifications in sub-paragraphs (2) and (3) below. (2) In paragraph 1(4), for "her contract of employment on the last day of her maternity leave period" there shall be substituted "her original contract of employment".

(3) In paragraph 2(7), for paragraph (b) there shall be substituted--

"(b) under her original contract of employment, she was a bar worker and was not employed to work only on Sunday during the previously restricted hours."

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

Dismissal on grounds of assertion of statutory right

19. In section 60A of the 1978 Act (dismissal on grounds of assertion of statutory right) in subsection (4)(a), after "or" at the end of paragraph (i) there shall be inserted--

"(ia) Schedule 15 to the Licensing Act 1964, or".

Dismissal procedures agreements

20. In section 65 of the 1978 Act (exclusion in respect of dismissal procedures agreement) in subsection (4), after "section 60A(1)" there shall be inserted "or the right conferred by paragraph 7 or 8 of Schedule 15 to the Licensing Act 1964".

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Conciliation

21. In section 133 of the 1978 Act (general provisions as to conciliation officers) after "or" at the end of paragraph (a) there shall be inserted--

"(aa) arising out of a contravention or alleged contravention, of paragraph 10 of Schedule 15 to the Licensing Act 1964; or"

Application of certain other provisions of 1978 Act

22. 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."

Mr. Howarth: We debated this issue on Second Reading and in Committee, although not in connection with the new clause. The new clause would introduce a new schedule to the Licensing Act 1964, which would be inserted between schedules 14 and 15, which refer to the rights of bar workers in respect of Sunday working. The purpose behind the new clause is a matter of conviction for my hon. Friends and me--the belief that workers who are expected to work on a Sunday and who will be covered by the changed arrangements implicit in the Bill should be protected from being forced to work on a Sunday by the Bill, or, more importantly, by their employers.

The new clause defines a protected bar worker, so that such workers can be included, or in some cases excluded, from our proposed new schedule. We also provide an objection procedure whereby those who are covered by the new arrangements have the opportunity to give notice in writing to their employer that they object to working additional hours on Sundays, and a procedure whereby employers can state their position.

Proposed paragraphs (6) and (7) provide protection for workers who object, so that they cannot be dismissed or have punitive action taken against them by their employers because they have lodged an objection to working on Sundays under the conditions implicit in the Bill. The proposed new schedule also provides for statutory rights for those workers, and a framework in which those statutory rights can be operated. It also provides for transitional arrangements, especially for maternity cases. Many people will agree that there should be some limit, and that pregnant women should be treated slightly differently.

I will not detain the House long, because I realise that everyone is desperately eager to be about business other than discussing the Bill; we have had plenty of opportunity to discuss it elsewhere. There is, however, an issue of principle involved.

I support--some of my hon. Friends did not--the general thrust of the Bill on the basis that Sunday is a family day, which gives the opportunity to enjoy a range of leisure facilities. Equally, we believe that those who are expected to work to provide those additional leisure facilities during the extra hours that will be available should have rights, and that the two sets of rights need to be brought into balance. That is the purpose behind our proposed new schedule.

Those who have to work on a Sunday should have the option of being able to set aside some part of the week or some part of Sunday to spend time with their families--perhaps to spend time visiting a bar facility, under the

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new provisions, or a restaurant. All we are saying is that two sets of rights have to be considered. We believe that new clause 1 and the new schedule that it would introduce are one way in which to do that.

We do not want to create disharmony. We believe that the Minister has made concessions on other matters, and that he will make some others later this afternoon. We feel, however, that this is an important issue, and we hope that, even at this late stage in the proceedings, the Government will accept that there is a proper case to be made, and that we have made the proper case that the rights of workers who are expected to work on a Sunday should be taken into account.

Mr. James Hill (Southampton, Test): I rise to declare that I am a consultant to the Society of Licensed Victuallers, and the legislation will apply to the majority of its members. They would be wary of a Bill passing through the House without any objection. My only objection is that, too often, it is the employees who are mentioned. The average licensee has a living to earn; he has to pay high wages these days. He will certainly have to pay much higher wages for Sundays, Christmas day and Good Friday. I am surprised that my right hon. Friend the Minister of State, Home Office, needs to introduce the Bill, because surely deregulation is the name of the game. We should free up the hours completely, not necessarily have a nibble at them from time to time.

5.30 pm

I have already led a delegation to see my right hon. Friend the Minister of State. The retailer--I shall call him that, for that is what he is--is over -legislated for in this sector. I can understand the fears about the employees, but they have an easy means of presenting their fears--by withdrawing from their work.

I cannot see why we need more regulation in an industry that uses mainly part-time workers for the busy times of the business week. If the landlord can induce his staff to keep working throughout Christmas day, Sundays or Good Friday, it is up to him to see whether he can achieve that through local negotiations. I cannot see why the state needs to become so involved in the legislation.

Mr. Derek Enright (Hemsworth): Is the hon. Gentleman not aware of the fact that, in London and other large cities, there are many illegal immigrant workers, particularly Australians, who work without a licence and are therefore prepared to work for low rates lest they be reported?

Mr. Hill: I am sure that the Home Office has a way of dealing with illegal immigrants; I am sure that it is constantly sending out people to identify them. That is not the way that the landlord of an establishment would care to operate. He does not have to ensure that someone has a work permit if he comes to work two hours on a Sunday afternoon. That is up to the Home Office, which has abysmally neglected that part of the labour market.

This country's immigration policies are lax. I am surprised at that, because my right hon. Friend the Minister of State is generally at the cutting edge of the right, and does not always stand back. The immigration problem is another problem--it is not something that the landlord can do anything about. All he can do is employ people to work the hours.

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The Minister of State, Home Office (Mr. Michael Forsyth): I am grateful to my hon. Friend for going away--I am sorry, for giving way. That was a Freudian slip. The Bill meets my hon. Friend's aims: it deregulates the position in respect of Sunday afternoons. It may not do as much as my hon. Friend would wish in terms of the evenings. While I agree that the new clause would be regulatory, I should have thought that my hon. Friend would want to give the Government some credit for having extended consumer choice, and for introducing what is generally a deregulatory measure.

Mr. Hill: I thank my right hon. Friend for those few words, but the hon. Member for Knowsley, North (Mr. Howarth) clearly said that the Home Office, indeed the Minister of State, would be making other concessions. I was not too clear about what they were.

Mr. George Howarth: I do not want to test the hon. Gentleman's patience, but I was not expecting any concessions from the Government on new clause 1. The Government may make concessions on other parts of the Bill.

Mr. Hill: I am reassured by that. Bills can be dangerous, as they can be added to in future by other political parties that do not necessarily have the same leanings as my right hon. Friend the Minister of State. The fewer pieces of legislation there are--this is one Bill that I should have thought was not needed--the fewer restrictions there are. I do not know whether we need a giant prayer against every bit of legislation that affects the licensee. If there is anything to be done to ensure that the licensee and the employees have a future, preventing the illegal importation of vast quantities of drink along the south coast would be a good thing. I would be more than satisfied if a Bill were introduced on that subject.

Mr. A. J. Beith (Berwick-upon-Tweed): The hon. Member for Southampton, Test (Mr. Hill) has his own very strange interpretation of the Bill. Even those who have criticised it on the grounds that it greatly extends the hours for which public houses are open, without resolving some of the problems associated with that, would have to concede that it is undoubtedly a deregulatory Bill. It sweeps away restrictions on the times at which licensed premises can open on Sunday afternoons, Good Friday and Christmas day--a subject on which the Government have said that they will make a concession. I am in the strange position of having my name attached to every amendment on the amendment paper today, for a series of different reasons. In the case of the new clause, it is because it follows very much the lines of a new clause that I moved in Committee, which was designed to secure some protection for people who will be obliged to work on Sundays.

A minute or so ago, the subject of illegal immigrants working in the licensed trade was mentioned. A employer has some responsibility to satisfy himself that someone he employs is legally entitled to be so employed. The Department of Employment also plays a significant role, so the position is not quite that described by the hon. Member for Southampton, Test.

The primary concern of the new clause, as with the new clause that I moved in Committee, is the large number of people, including licensed house managers and bar staff,

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who feel extremely vulnerable to pressure to work on Sundays, when they want to set aside at least an hour or two to be with their own families. That fear is genuine and cannot be discounted. The Minister of State and Conservative Members must weigh that fact against the advantages that they see in deregulation.

The Minister and Conservative Members had to make a similar consideration when the House removed most of the restrictions on Sunday retail trading. At that stage, the House decided that it was necessary to make provision-- at least to protect those who entered the retail trade without knowing that they could be legally required to work on Sundays.

When those people entered the trade, it would not have been legal for them to be required to do so in a great many of the larger shops. That provision was included in that measure. The Bill contains similar provisions in relation to Sunday afternoon trading in pubs, clubs and off-licences. We are looking to see whether we can provide some protection for the staff involved.

It is unfair and complacent to ignore the feelings that have been expressed. The National Association of Licensed House Managers has been the strongest in expressing those views and has pointed to the contractual obligations under which managers will be required to open their premises for all the legally permitted hours. Bar staff comprise a much less organised group; some of them are part-time and some are dependent on that income. Many of them are women, who are perhaps supplementing a severely diminished family income by working in pubs and clubs. They may want to keep their job, but not have to give up family time on Sundays. That is why some of us thought that such protection was a necessary feature of the Bill.

I am glad that we have returned to the subject now, and I urge the Minister of State to think carefully about the position of those who do not enjoy the genuine freedom of choice that he seeks to give to consumers. I can understand the Minister's desire to give consumers that freedom of choice and, to a point, landlords are being given greater freedom of choice in so far as the landlord has a real freedom to decide whether to open his premises.

However, some landlords will not want to be left behind if a neighbouring premises opens on Sunday afternoons. In that case, the premises that opens on a Sunday afternoon may attract the clientele that the other premises attracted earlier in the day, because those people will know that they can stay for longer in the public house that is open all afternoon. Some landlords may feel pressure to open on Sunday afternoons.

Some people may have freedom of choice, but when the Bill is finally enacted, many people will lose a freedom of choice which they possess at the moment. That is the freedom to spend a limited amount of time on Sunday afternoons with their families, or doing whatever else they want to do on a Sunday afternoon. As the law does not currently allow pubs to be open on Sunday afternoons, they know that they cannot be required to work then.

The Bill reduces some people's freedom. Ministers must recognise that. One way to do that would be to include provisions along the lines of new clause 1.

Mr. James Couchman (Gillingham): I repeat the registered interest, which I still have in the licensed trade, that I declared on Second Reading and in Committee. I

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am still a non-executive director of the family company I disposed of at the end of last October. As I have said before, I still have a vestigial interest in the licensed trade. I am also the vice-chairman of the parliamentary beer club, which I believe is the largest all-party group in the House, as it now has nearly 200 members.

Mr. Beith: I assure the hon. Gentleman that the parliamentary group which takes an interest in non-profit-making members' clubs is a larger group still, by quite a margin.

Mr. Couchman: The hon. Member for Knowsley, North (Mr. Howarth), who moved the new clause, is seeking to attach the provision to the Licensing Act 1964. That is a very curious mechanism to use through the vehicle of this small and quite limited Bill. The hon. Gentleman has tried to attach to the back of this small Bill a major change in the employment conditions that would apply to bar staff, licensed house managers and tenant licensees.

Anyone who comes to work in the licensed trade fully expects to do so on Sundays. I accepted in Committee that there is a change with regard to Sunday afternoons, but the new schedule applies to the present restricted opening hours on a Sunday.

People who work in the licensed trade are aware of the present Sunday opening hours. I can see no possible reason why the draconian new schedule should be included in the Bill in order to give rights which were specifically excluded when the House debated Sunday trading during the last parliamentary Session.

I was one of the first people to initiate such a protection with regard to Sunday trading, when I introduced a private Member's Bill two years ago. I had the first schedule for protection for workers in my Bill. I recognised that people who were suddenly confronted with the possibility of working on Sundays, when they had been taken on to work six days a week, should have some protection and a right not to work on Sundays.

If the new schedule is included in the Bill, we would make life very difficult for the licensed house managers and tenant licensees if they found that all their staff wanted to opt out of Sunday working. Under the terms of the new schedule, as I understand it--perhaps the hon. Member for Knowsley, North will correct me if I am wrong--all bar staff throughout the country would be given the right to opt out of Sunday working. I am sure that it is not intended that pubs should close on Sundays, but that would be the effect if the staff opted out of Sunday working.

In Committee, we discussed at some length what would happen to the people who work in pub restaurants, who may well work through Sunday afternoons at the moment, as restaurants serving full meals may open during the afternoon break on a Sunday. Waitresses, waiters, kitchen staff and chefs would not be covered by the proposal. We would have a curious situation, whereby the kitchen and dining room staff would not be covered, but bar staff would be covered. The bar staff could opt out of Sunday working, but the catering staff could not. As some people will do both bar and catering work during the week, deciding which is which on Sundays would be a problem.

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