Examination of witnesses (Questions 40
- 59)
WEDNESDAY 1 MARCH 2000
MR ALAN
JOHNSON, MISS
NICOLA CARTER
and MR DAMIEN
NUSSBAUM
40. I have to say this is very close to my heart.
I had a member of my family who worked for Captain Bob Maxwell
some years ago as "a casual journalist". He worked four
years and he never got any sick pay, he never got any holiday
pay, life was rough and he was allegedly laid off every 13th week.
These issues really do hurt right up and down the scale. I know
you are aware of it. Terminology hits people hard.
(Mr Johnson) Yes, I think that is right. I was a postman
for many years and we had thousands of sociology students from
Sheffield University flood into sorting offices all over the country
every Christmas. That was thought of as kind of casual employment
at that time, Christmas casuals, but there are large areas where
casuals now—I am a bit frivolous about Christmas casuals
but anyone who was a Christmas casual worker knows it was quite
fun for a few weeks.
41. I am talking about 52 weeks of the year,
year in, year out, casual, not manual, we are talking higher levels
in editorial work. It is right through the scale and it is endemic.
(Mr Johnson) The point I am making is we have moved
from that situation where casuals were thought of as Christmas
or summer, down at Butlins or whatever, to the situation where
there are people in the circumstances you have described. I do
take that point very seriously.
Mr Brady
42. There was total and commendable clarity
in your answer to my earlier question, Minister, and I detect
a slightly different emphasis now in that I think what you just
said to Candy is that part-time casuals will receive the same
pay as full-time casuals. Does that imply they may not necessarily
receive the same pay as part-time permanent or indeed pro rata
full-time permanent?
(Mr Johnson) If they are doing the same job they should
be getting the same pay.
Judy Mallaber
43. What protection will the Regulations offer
to "segregated" part-time employees for whom there is
no comparable full-time employee? How will the Regulations affect
them?
(Mr Johnson) What we have said, this is the point
about the hypothetical comparator, is that we do not think the
hypothetical comparator is appropriate in these circumstances.
What is appropriate is if there is someone in that firm, not just
in that workplace, but in that firm, might be in a different workplace,
working for the same company and doing the same work on full-time,
that should be the comparison with the part-time.
44. To clarify, because this is completely ambiguous
in the section where it says "works at the same establishment
as the part-time employee or, where no full-time employee ..."
etc "... works at a different establishment". Is that
a different establishment with the same employee?
(Mr Johnson) Yes.
45. That is totally ambiguous?
(Mr Johnson) We thought it was quite clear.
Chairman: Very complex as well as sagacious.
Judy Mallaber
46. In response to us talking about the hypothetical
comparator in our report, the Government noted the Committee's
recommendation. I know, Minister, that you were not responsible
personally for the response at the time and noted that "this
would be in line with existing discrimination law". One of
the arguments we were making in our report was that we have had
incredibly tortuous processes for dealing with previous discrimination
and equal pay legislation. We have had to go back and amend it
because it did not work and introduce these different forms of
comparison and we said quite explicitly that if the Directive
was only implemented in the most formalistic way we could get
into many legal difficulties and people spending years traipsing
through the European courts to get the advice, as we have done
with previous legislation when we have had to amend it. I will
put it to you that maybe one of the reasons why your impact assessment
says that not many part-timers will be affected is because it
also says that only one million of them would have a full-time
comparator. You are already limiting the number who would be able
to make comparisons. Are these not all arguments for moving to
a different form of comparison and why do you rule that out?
(Mr Johnson) It is a point that was made in the consultation.
We will consider it very seriously. Our view is that our approach
has to be proportionate to the problem. As I said earlier, there
is a difference between sex discrimination, discrimination on
race and gender and disability and this issue where you have the
law at the moment where there is no definition of a full-time
or a part-time. In fact as a trade union leader I was trying to
get my members on to a 35 hour working week when they were on
a 43 hour working week. When I started working for the post office
a 35 hour working week was part-time. There are companies who
may employ nine people who all work 30 hours. In that company
you could say, quite fairly, that the employer has introduced
a shorter working week of 30 hours for all their employees. The
effect on business is quite right, and I think business accept
this hypothetical comparator in relation to race and sexual disability
cases, but to say on this question that you can take a hypothetical
comparison for someone who does not work in that company, and
I know the way it has been done very tortuously and very properly
and rightly in sex and race discrimination cases but in this area
it is an absolute minefield we think, and I think, it would be
a burden on business. We are saying that if Joe Bloggs and Company
employ somebody on a part-time job, doing the same job as a full-timer
in Joe Bloggs and Company, in that work place or anywhere else
that Jo Bloggs employs people in the United Kingdom, that is the
comparator that we should use. The person who employs these people,
they have to pay the minimum wage, the Working Time Directive
is in place, we are talking about people who give good decent
terms and conditions and who only employ part-time people. The
prospect of them being dragged through a process of hypothetical
comparator of a different company, our initial approach was that
would be wrong, it would be disproportionate to the problem we
are trying to tackle here.
47. In effect we are saying that the majority
of part-time workers would not benefit from the regulations because
they would be in areas for which there is no comparison?
(Mr Johnson) They would benefit—The whole point
of these regulations, and absolutely consistent with the Directive,
is part-timers should just get the same pay as full-timers, they
should get the same holidays, the same training, the same holiday
pay, the same shift allowances, the same bonus payments as full-timers.
That is the whole point of the Directive.
48. They still would have a comparator?
(Mr Johnson) A comparator within the company, yes,
the same pay as full-timers within the company.
49. Can I just press you. You said it was a
very different from sex discrimination but the major reason why
there are gaps between how men do and how women do is because
of occupational and industrial segregation and so many part-time
workers are concentrated within those occupations and they would
not benefit from this because they would not have the full-time
comparator.
(Mr Johnson) The minimum wage gave 1.5 million workers
a pay increase, the majority of them would have been women. There
are different ways to tackle different problems. In terms of this
problem the Directive says that part-timers should get the same
terms and conditions as full-timers. Previously, as you know,
Judy, it has always been based on sex, if you can prove a case
where male workers are getting the different terms and conditions,
men are getting different terms from women, you could not do that
in a company where they are all of the same sex. This is very
much the purpose of the Directive and we think the hypothetical
comparator in this situation is inappropriate.
Chairman
50. The reason you have decided not to go down
the route of the hypothetical comparator is the reason why this
has minimal impact upon the SME sector, presumably. I think you
were arguing yourself earlier on—
(Mr Johnson) Yes, that is a fair view, Chairman.
51. That has been a conscious decision by the
Government, that it does not particularly want these regulations
to impact very much on the SME sector, or are you assuming that
there is no problem within the SME sector?
(Mr Johnson) No, and in terms of the SME sector we
were heavily lobbied as a Government to exclude small businesses,
for instance, from parental leave, a" la the United States,
a" la Greece, a" la lots of other countries. We rejected
that representation. We said we are not going to have ghettos
of bad employment practices in small businesses. There is only
one piece of legislation, which is trade union recognition in
Employment Relations Acts, where we have excluded small firms.
So it is not about saying "This is about particularly SMEs",
actually as a consequence of SMEs being employers of part-times,
companies which just employ four people and they are all part-timers,
then there is no full-time comparator, there is no claim that
a part-timer is being treated less fairly than a full-timer in
that company and so the effect will be minimal because of those
reasons on SMEs. It is larger companies where we believe the problem
is, the problem being part-timers not getting the same terms and
conditions as full-timers, and that is the problem we are trying
to tackle. We are trying to lift wages in other ways, by the minimum
wage. We are trying to ensure protection on time off work for
parental leave. We are trying to ensure social justice in terms
of being represented at a discipline on grievance hearing through
the other aspects of the Employment Relations Act.
Mr Twigg
52. Alan, can I move us on to the area of training.
As I understand it in the draft Regulations in the consultation
document it says that part-timers should not be excluded from
training as a matter of principle, obviously, but no duties are
placed on employers to structure their training so as to accommodate
part-timers. Concerns have been expressed during the debate and
the consultation about this. Would it be fair to say that employers
will still be allowed to deny training to part-time workers, for
example, by scheduling the training times that part-time workers
cannot attend?
(Mr Johnson) No, the whole aim of this is to ensure
that training is as much a part of this as pay and hours. The
employer would have to make an objective case to say why in their
particular company. I think we gave an example, did we not, Nicola,
in the Directive, perhaps you could remind me of the example we
used on training? We gave an example of the kind of case where
an employer could reasonably say we could not offer the same training.
(Miss Carter) Yes. It would be if there was some substantial
business reason for it. If the employer had part-timers who only
worked mornings and the particular trainer was only available
in the afternoons then that would be objective grounds. The part-timer
would not be able to say "No, you must hire someone the same
who will come in in the morning just to train me" because
that would be excessive. If the employer has a choice of when
to schedule training, and it is equally easy to go for mornings
or afternoons, then he would be under a requirement to do what
was the most convenient for the majority of staff, including part-timers.
That is the sort of way we see it working.
Chairman
53. I am sure the Minister will be conscious
that the TUC has said that the actual phrasing you have used is
almost an open invitation to drive a coach and horses through
because you have said "however there is no legal obligation
on employers to structure their training in practice in order
to accommodate part-timers." It does seem a little as though
you are giving a nod and a wink to them to say, "There is
no legal obligation upon you here."
(Mr Johnson) Yes.
54. And yet your own evidence seems to suggest
that you are not taking that view?
(Mr Johnson) No, and I am very concerned. At a meeting
I had with the TUC the argument was very eloquently put on that
point. We can always improve wording. Our aim is that part-timers
should be trained. Our aim in line with yours is about ensuring
training opportunities are increased. Actually it is a sad and
surprising fact that the number of days' in-house training given
by employers has dropped from an average of five days a year in
1995 down to three days a year in 1998, which was the last time
we measured it. Given all the drive towards training and the skills
shortage and productivity gaps, that is pretty depressing, so
we have to redeploy the efforts, and part-timers are crucial to
this. The whole point of this Directive is that they do get the
same training opportunities, but applying it exactly in accordance
with the Directive and consistent with other Member States is
that there are these objective criteria points which need to be
addressed. Your point, Chairman, is that we are encouraging people
to find reasons not to train part-timers and that concerns me.
55. Will you have another look at it?
(Mr Johnson) Yes.
56. I was going to raise the problem of part-time
workers and overtime, where you are taking quite strongly the
view it is only when the full-time hours have been exceeded that
a part-timer will qualify for overtime payments?
(Mr Johnson) Yes.
57. Can you explain why you have taken that
view?
(Mr Johnson) Yes. Actually we think it might be discrimination
the other way. If there is a full-timer on £4 an hour—not
for any particular reason, I hasten to say, it is just a round
number!—who has a contract of employment which says the
full-time hours are 35 hours a week, he gets £4 an hour for
35 hours and on the 36th hour, because he gets time and a half,
he gets £6 an hour. If the full-timer is getting £6
an hour on the 36th hour and the part-timer, who is on a 20 hour
a week contract, gets £6 an hour for the 21st hour, we think
there is not only a problem there in terms of employment relations
in the company and industrial relations but it is actually not
the purpose of what we are trying to do. If, on the other hand,
and this existed in whole swathes of British industry, a part-timer,
no matter how many hours they did, when they got to the 36th hour
because they were asked to do over-time were paid £4 instead
of £6, that would be outlawed by what we are doing. This
is a problem in lots of areas and that will be a benefit. We do
not see a case for paying—to use my comparison—on
the 21st hour on one person's contract £6 an hour when it
is only applicable on the 36th hour on another person's contract.
58. What about the instance, which happens more
and more in the retail trade for example, where 85 per cent are
part-time workers and it is very much for the convenience of the
company that that is the case? Is there not a case there for taking
a slightly different view? The full-time employee is hardly the
norm and so it does seem a little disingenuous, if I may say so,
to say, "You need to work over the full-time hours before
you get paid overtime", when the majority of workers are
actually part-timers.
(Mr Johnson) I do not think that is inconsistent.
You would be saying there that the hourly rate is a certain rate
up to a level of hours when it increases and that applies to everybody.
A good example is where there are premium payments for work on
Sunday, for instance, in the retail trade, and they have to be
paid to part-timers as well as full-timers because that is not
dependent on the hours you do. On the first example I gave you
get past your conditions and you go on to an overtime rate; working
on a Sunday, the rate for working on a Sunday is not attached
to the number of hours you have done, ie double-time on Sunday
should be double-time for a part-timer working on a Sunday and
double-time for a full-timer working on a Sunday.
59. Just in case I was down on the retail trade,
we were very much impressed by Asda and Sainsbury's when they
came to give evidence to us on our part-time working study. They
were model employers in insisting on giving the rates to the part-time
staff that they gave to their full-time staff and it did not just
relate to pay, it was the whole of the terms and conditions too.
(Mr Johnson) That is good, seeing they both have representatives
in this House somewhere or another!
Chairman: I am not quite certain whether they
do not own the whole political process these days!
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