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Baroness Miller of Hendon moved Amendment No. 278:

Page 9, line 15, at end insert ("unless such unfavourable treatment is reasonably justified.")

The noble Baroness said: In moving this amendment I shall speak to Amendments Nos. 279 and 281 to 283. As regards Amendment No. 278, I would not like it to be thought that I am in favour of anybody being treated unfavourably. But under this Government's egalitarian philosophy, as contained in the Bill--for example, in the provisions in Clause 15--any distinction between one employee and another is regarded as a detriment even if there are valid reasons for that distinction.

In this clause, the Government propose to give the Secretary of State powers to make regulations to secure that part-time workers should not be treated less favourably than full-time workers. However, although subsection (2)(c) states that the Secretary of State may specify whether circumstances do or do not constitute less favourable treatment, we believe that that is a bit vague and that it is a blank cheque. We agree that there can be circumstances where less favourable treatment may be justified. It seems that the Government, by the wording of paragraph (c), concede that that is correct. However, nowhere in that enabling paragraph is there any requirement for the concept of reasonableness to be inserted. In various Bills, the Government seem to resist that concept, but in this case it is essential. This clause enables the Secretary of State to create new criminal offences.

At this time of night I do not want to get into discussions about when it may be reasonable for an employee to be treated unfavourably compared with another. Each case must depend on individual circumstances. That is why a test of reasonable justification is required.

The Secretary of State will obviously have to decide his detailed exemptions for himself. I cannot think of examples at this stage although I could, if pressed. Indeed, I could give a very simple example from my former business. Because of a lack of public transport on the industrial estate on which my factory was based, the manager used to pick up and deliver employees to and from the main road at the beginning and the end of the day in my minibus. There was no possibility of doing that during the middle of the day because he was far too busy. If we had had a part-time worker who had to cover the half-mile each way on foot, that might have been regarded by some official as "unfavourable treatment" compared with that given to other employees.

There is a danger in legislating in a way that makes it more expensive and more difficult to employ part-time workers. Employers simply use more full-timers. "What is wrong with that?", some of your Lordships may ask. The result would be that many working mothers and many disabled people would find it that much harder to be self-supporting and to have the dignity of working. If the Government make it much too hard to employ part-time workers, they will damage the very people whom this Bill is trying to help and protect.

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Amendment No. 279 is necessary because it creates an absolute criminal liability on someone who may innocently commit an act which regulations made under this Bill will criminalise. A junior employee may very well technically "aid" the commission of an offence simply by doing something he is instructed to do, which on the face of it is perfectly normal but which under some subjective test is later deemed to be "less favourable" to a colleague.

Once again, I find it hard to give an example, but I cannot imagine why the Government seek to introduce into the relationship of employer and employee the concept of criminal liability with regard to matters that ought to be dealt with by the civil courts or the employment tribunals. In my view, it is just intimidation of employers and does nothing to further "employment relations", which is what this Bill is supposed to be about. However, if the magistrates' courts are to be involved, the least that can be done is to permit the defences that are available for many other, far more serious, offences. I refer to the concept of a guilty mind, or mens rea as it was called before the recent abolition of legal Latin.

Amendments Nos. 281 and 283 are identical and relate to the regulation-making powers conferred on the Secretary of State under Clauses 17 and 20. Clause 17 deals with discrimination in the case of part-time workers. Clause 20 is a very wide-ranging power to confer rights on,

    "any individuals who are of a specified description". Under Clause 20, the Secretary of State can deem that an individual is a party to a worker's contract, who the employer is deemed to be, and, having done all that, he can modify it as regards any individuals.

Rightly--I give them full credit for having done so--the Government have made the regulations under the two clauses subject to positive resolution of both Houses. However, I do not think that that goes quite far enough. The regulations under both clauses are so far-reaching, give such extensive and so far unspecified powers, and may affect so many persons--employees and employers alike--that it is vital that no regulation is even drafted before the Government have consulted widely. In some ways, that will assist the Secretary of State to convince Parliament to approve the regulations.

Amendment No. 282 is an administrative amendment, affecting part-time workers. Such workers are often those most in need of work. I refer, for example, to single parents; to older workers who may not want, cannot obtain, or may not be able to undertake, full-time work; and to disabled persons who are not physically able to work full time. We suspect that over-regulation of this sector of employment may very well make it uneconomic for employers to take on part-time workers. The same would apply to over-bureaucratic regulation. An employer may decide that, taking everything into consideration, including the national minimum wage and the working time directive, it is in his own interests to employ a full-time worker.

The purpose of the amendment is to point out to the Government that we are worried that the regulations may very well destroy jobs. If the Government are

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confident that we are wrong, they should be prepared to prove it by publishing a report on the effect of Clause 17 after its first two years of operation. I beg to move.

9.15 p.m.

Lord Sainsbury of Turville: Perhaps I may deal with Amendments Nos. 278, 279, 281, 282 and 283. As your Lordships will be aware, the provisions in this clause provide a power under which the Government intend to fulfil their obligations under the part-time work directive. The directive sends a powerful message that part-time work is not second-class work. Rather it is a valuable tool in the labour market which can be of enormous benefit both to businesses and their employees. As such, part-time workers have a right to be treated on the same basis as others. They should not suffer worse treatment simply because they work fewer hours.

That is the fundamental principle lying behind the clause and the directive. However, it does not mean equal treatment whatever the circumstances. The directive recognises that there may be objective justification for different treatment just as, for example, employers may be able to justify a requirement which impacts more heavily on women than on men if there is good reason for the requirement which is unrelated to the employee's sex.

The clause also recognises the need to provide for such justification. In particular, the powers in Clause 18(1) allow for regulations to be made to provide for no less favourable treatment for such purposes and to such an extent as the regulations may specify. This power will be used to ensure that those who have objective justification for offering different terms and conditions to full and part-time workers will be able to do so. I am therefore entirely sympathetic with the principles behind the amendment, but it is unnecessary since the ability to justify differential treatment will be spelt out in the regulations.

It may also be misleading. The wording in the directive allows for objective justification. While this will most likely be reasonable as well, there is a clear definition in European law of what constitutes objective justification. To use a different phrase in the Bill, as the amendment proposes, could lead to confusion as to employers' obligations. We shall be consulting fully on the regulations, and this will provide an opportunity for those who may be affected by them to comment on the provisions. I can assure your Lordships that the debate we are having today will inform the drafting of the regulations.

We are not legislating to require employers to offer part-time work. We wish to encourage that, but the statute will not require employers to find part-time jobs where it is not an economic viability. It will simply require that where such jobs exist the employees should have no less favourable treatment than colleagues doing equivalent work full-time. As I said, the regulations will allow employers to justify any less favourable treatment if that can be done objectively.

Before looking at Amendment No. 279, I should make it clear that if we use the power to create a criminal liability at all we envisage a very limited use,

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reflecting the provisions of the Disability Discrimination Act 1995. Under that Act, someone who knowingly aids an unlawful or discriminatory act will be treated as himself discriminating unlawfully unless he reasonably relied on a false or misleading statement by another person that the discriminatory act would not be unlawful. The person who made that false or misleading statement will be committing a criminal offence if he or she knowingly or recklessly made it.

Your Lordships will see that the criminal offence is very narrowly defined. It is not intended to use the powers in Clause 17 to create extensive criminal offences. However, to avoid any confusion we intend to have all the data on the operation of any offences, including any necessary definitions, together in the regulations. The draft regulations will be subject to wide consultation, and so it is not possible at this stage to say exactly how this or any other power would be used. However, I can assure the Committee that the regulations will reflect the spirit of this amendment; namely, that the power to create offences will be used sparingly and with restraint.

Turning to Amendment No. 281, the Government recognise the importance of consulting widely on the details of the regulations that we are proposing in the clause. It is an important general principle that the people who are affected by regulations should have a chance to comment on what the Government are proposing. As I have mentioned, the Government intend to consult widely on the detail of the regulations. The directive does not have to be implemented until 7th April 2000 and so there will be time available for full consultation to take place. We shall want to hear from all interested parties. I can assure noble Lords that all views expressed in this House on the subject will be taken into account. It is quite unnecessary to make this a legal requirement. We are committed to the procedure and will carry it out.

Furthermore, the amendment would impose a requirement to consult before any revisions to the regulations were made. In most cases the Government will want to do so. But there could be occasions when the Government needed to make rapid and purely technical revisions, for example, to close a loophole which had been discovered and which prevented the regulations fulfilling the purpose that Parliament intended. In that case there would be neither the time nor the need for consultation. In order to maintain this flexibility for government, I must oppose the amendment. However, all regulations under this power will be subject to affirmative resolution, as has been made clear, and your Lordships will have the opportunity to scrutinise them properly.

These comments apply equally to Amendment No. 283, and I must oppose it also as unnecessary and inappropriate. However, I am happy to reaffirm the commitment given in another place that the Government will carry out full public consultation on detailed proposals before exercising this new power. Again, any order will be subject to affirmative resolution.

Amendment No. 282 would commit the Secretary of State to reporting on the impact of the regulations on the level of part-time working in the economy. Although

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I agree that in general there should be an effective monitoring of all legislation, there are a number of reasons why the amendment is unnecessary and indeed ineffective in this case. First, this measure is not solely concerned with increasing the number of part-time jobs. At least as important will be the effect it has on the status of part-time work and hence the quality of the available jobs. It also aims to open up the wider range of part-time opportunities, especially in areas which may be thought currently to be unsuitable for part-time work. A simple measure of the level of part-time work will not pick up those important changes and so will underestimate the effect of the regulations.

Secondly, we are not aiming at a quick fix with the provision. With these regulations we are aiming for a long-term effect on workplace culture and on perceptions of part-time work. There is unlikely to be concrete evidence of significant change within the first two years, and it would not be worth conducting a study so soon.

Thirdly, as anyone who has worked in the retail trade will know, there has been a long-term trend towards an increase in the level of part-time work in the economy, but the rate of growth has not been constant. Also, over recent years the workplace culture has been changing, for example, as employers recognise that they may be unlawfully discriminating on grounds of sex if they discriminate against part-time workers. Thus we do not expect the regulations to cause a revolutionary change, but rather to reinforce existing trends and provide clarity for workers and employers.

It is almost inevitable that the level of part-time work in the economy will change in the future regardless of government action. However, it would be difficult to untangle the effects of all the factors I have mentioned and to establish accurately to what extent any change was due to the regulations or to other economic and social factors.

Having said that, I assure noble Lords that the Government have every intention of monitoring the effects of the legislation they put in place. We shall be keen to review the success of part-time work provisions but we shall take a wider view than the amendment contemplates. Part-time work is already regularly monitored in statistical surveys and we shall consider carefully what else needs to be done to assess the wider effects of the new legislation.

This amendment would add nothing to the Bill and would involve government researchers in work which would not give us any useful information. I hope the noble Baroness will be convinced by the assurance I have given in discussing the amendments and so will be persuaded to withdraw them.

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