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Baroness Miller of Hendon: The Minister suggested that my amendment might have unintentional consequences—I am not sure about that, and I will read what he said. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 234 and 235 not moved.]
Clause 46 [Fixed-term work: Northern Ireland]:
[Amendments Nos. 236 to 238 not moved.]
Baroness Miller of Hendon moved Amendment No. 239:
- Page 51, leave out lines 28 and 29.
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 240 to 244, 247 to 251, 253, 254 and 256.
Clause 43 introduced a new statutory concept of learning representatives. In the same way, Clause 47 introduces a new right for workers—the right to demand a unilateral variation in the freely negotiated terms of employment. If an employer attempted to do such a thing, the employee could rightly claim that he or she had been wrongly dismissed and obtain compensation—probably quite substantial compensation at that. Although there is a law against wrongful dismissal, I do not believe there is a countervailing law against wrongful leaving.
As I said as a preface to my remarks on Clause 43, this new legislative concept has some rough edges which need trimming, especially as this whole clause was not before the Committee in the other place. That is why I want to speak to it here.
Clause 47 introduces new Sections 80F, 80G, 80H and 80I and consequential Amendments Nos. 47D and 104C into the Employment Rights Act 1996. In two separate amendments—Amendments Nos. 239 and 240—I propose the deletion of paragraphs (iii) and (iv) of subsection (1)(a) of new Section 80F. Those two paragraphs go further than merely giving the employee the right to alter the number of hours that he is required to work and the times when he is required to work those hours. Those two factors, and those alone, are what are generally understood by "flexible working", or "flexi-time", as it is often called.
When I was in business in Germany, the staff worked flexi-time, clocking in and out to suit their personal needs. Women with young children set their hours around the times their children were in school, and some of the men found it convenient either to come in early or to stay later. The employees were required simply to work a minimum number of hours every business week.
Paragraph (a)(iii) suggests that there should be a further right in addition to the right to vary one's working hours; namely, the right of an employee to choose whether he works at home or at his employer's place of business. I agree that these days many jobs can, indeed, be done at home via computers and modems. Unfortunately, that facility is not available to manual workers who are required to work in a factory or on a building site or wherever.
As I said previously, this Government wish to secure the egalitarian ideas emanating from Brussels, such as equal rights for fixed-term workers, as discussed in relation to the previous clause. Therefore, I believe that it is ironical that the Government are proposing rights which, from a practical point of view, can be exercised only by one type of employee—the so-called white collar worker, as distinct from the blue collar one.
Ignoring that purely philosophical aspect, the point is that giving the employee the right to choose the venue at which he works is likely to cause major disruption to the employer over and above that which will already be occasioned by the working of flexible hours and the changes to those hours. It is also likely to cause resentment among other employees who must not only work normal office hours but must struggle to and from work on the inadequate public transport system. The flexi-hours concept was intended to enable a new parent to look after his child more easily; it was not intended to allow the employee to carry out all his or her work in an atmosphere where that work would be subject to the distraction of looking after a child throughout the working day.
Amendment No. 240 relates to paragraph (a)(iv), which is also objectionable because yet another blank cheque is being demanded. The subparagraph proposes that the Secretary of State can alter other terms of employment. As I pointed out, the Bill already allows the employee to change the number of hours that he works, the times at which he works them and, unless my previous amendment is accepted, where he carries out his work.
What else can he ask to change? Perhaps he would like to change the type of work that he does or change his duties altogether. I certainly cannot think of anything else that would be in a normal employment contract. Perhaps, when he replies, the Minister will tell us what the Government have in mind. If he cannot do so, then I am not sure what purpose this subparagraph serves and I believe that it should simply be deleted, as the amendment seeks to do.
With Amendments Nos. 241 and 242 we come to new Section 80F(2), which deals with the contents of the employee's application for a contract variation. However, subsection (2) has an elementary drafting error which Amendment No. 241, to which I am now speaking, seeks to rectify. Although, as I said, the subsection specifies the contents of the application to change the terms of employment, it does not specify the fact that the application should be in writing. Without that requirement, there could be endless arguments as to what the employee had requested or, indeed, whether he had requested anything at all. Common sense suggests that the only practical way for an employee to apply would be by letter but, so long as there is no requirement that there should be something in writing, the scope of the argument, and indeed bad faith, could be endless.
The way in which subsection (2) specifies what the application must tell the employer makes it clear that the only practical way to do that would be in writing. However, there is always the danger that someone who fails to comply will—or could—pretend that he did so orally. To paraphrase the late Sam Goldwyn, a verbal application is not worth the paper it is written on.
Amendment No. 242 adds to the essential contents of the application set out in subsection (2). The list of contents has, in my view, been very fairly drawn. I am especially glad to note that the employee is to be required to give some consideration—pursuant to
subsection (c)—to the effect that that might have on his employer. That would mitigate against people simply taking advantage of the concession because it is theirs as a right, and not because it is really needed.However, one piece of information is missing from the list. That is covered by the amendment. Nowhere in the clause as it is currently drafted is the employee asked to explain why she or he needs to change the terms of employment; all that would be needed, for example, would be a statement such as, "I need to leave by 3 o'clock in order to collect my child from school". If the employee has a valid reason, there will be no difficulty in saying what it is. On the other hand, without being told what the reason is, the employer will not be in a position to give due consideration to the application that new Section 80G requires him to do.
Amendment No. 243 would correct an important omission from subsection (4). The Bill, quite rightly, insists that an employee may not make multiple applications and that, if an employee applies for a change, he or she has to stick with it for a year and especially cannot seek to modify the modification within that year. The amendment seeks to make such a requested change of terms a permanent change—"permanent", that is, to the extent that it will have to be adhered to for the same period of the year that the Government have specified for the interval between his applications. What cannot be permitted is for the employee to apply for a contract variation for a short period, such as a month or a few months.
An employer will always have to reorganise his business in order to accommodate an employee. As it is currently drafted, I foresee resentment among workers without children who might have major family commitments, such as elderly parents or a disabled spouse. The employer needs to be protected against the disruption caused by short-term chopping and changing. Also, there is nothing to prevent an employer and employee from coming to an amicable voluntary arrangement if that suits them.
I do not know why the Government seem to think that every arrangement between parties has to be the result of a compulsion. There are more good and understanding employers out there than there are very bad ones.
Amendment No. 244 is needed because, once again, the Government are asking for a blank cheque. The Secretary of State wants the power to specify the period of employment before an employee qualifies for the benefits of contract variation. The Secretary of State wants power to fix the qualifying duration of employment. Why cannot the Government tell us here and now just what they have in mind with regard to these provisions? I am sure that they must have thought out the matter already. Judging by previous form, whatever the Government specify in the first set of regulations, the qualifying time might gradually be eroded. We have seen that in relation to the issues of redundancy, wrongful dismissal, equal rights and so on.
It is also not unreasonable to expect a new employee to know what his or her commitments will be in the next six months and to have them covered in the
original contract. However, what is not reasonable would be for the Secretary of State to, for example, set an arbitrary period of four weeks or even less. Six months is a perfectly reasonable qualifying period by any standard.I turn to Amendment No. 246—I am not moving Amendment No. 245. It is quite possible that an employee may have more than one child under the age of six years, thereby qualifying for the right to request a variation of her contract. I said "quite possible" but in fact it is a very frequent occurrence. In my own case, there was a brief period when I had three children under that age and when the eldest reached the age of six, I had his two brothers still under the age of six for another three years.
It is agreed that a mother with a child under the age of six should be able to seek a variation in her terms of employment. This application limits the variation in terms of one application for every 12 months. This is consistent with the Government's own proposals in new Section 80F(4)in which they provided that an employee could not make more than one application in a period of 12 months.
However, the section relates to one child, as subsection (3) makes clear. It refers to the 14th day before the child concerned reaches the age of six. Members of the Committee will note the words "the child"; "child" in the singular. An employee seeking to take advantage of the right to flexible working now to be granted to him should make up his mind as to what his needs are and if there are conflicting needs because he has more than one child, he should tailor his application to take that into account.
I accept that there could be a change in circumstances in the period of 12 months. Another child could arrive, but, at worst, there would be a period of three months at the end of the period covered by the original application when the employee finds himself with a new child before he can make another application. I do not say that in any callous sense.
In subsection (4)—as I have already pointed out—the Government themselves prohibited a new application before 12 months from the original one. It may well be that an employee could in the circumstances that I have discussed suffer some inconvenience for a very short period, but this legislation has to be even handed. The convenience of the employer, often a small one, also has to be considered.
Amendment No. 247 deals with the new Section 80G(1)(b), which specifies the grounds upon which the employer may refuse an application for a contract variation. Subject to the four amendments that I shall be proposing next, the nine-item list contained in paragraph (b) seems to be reasonable. However, the preamble needs to be amended. It states that an employer:
- "shall only refuse the application because he considers that one or more of the following grounds applies".
Amendments Nos. 248 to 251, the next four, are to improve the grounds upon which the employer may refuse an application. I hasten to point out that they are not designed to minimise the employee's rights, but they are designed to tighten up the wording—to be more prescriptive.
Amendment No. 248 alters the words "the burden of costs" in paragraph (i) to "material additional cost". It is inevitable that complying with every application for contract variation will result in some additional cost. Practically every provision in the Bill will add to the burden of costs on employers, but the amendment ensures that only material increases will be taken into account. What is material, as in other instances in this Bill—and, indeed, in the general rules of construction applied by the civil and criminal courts—will, of course, depend entirely upon the circumstances and there should be no difficulty for any experienced tribunal in deciding whether a cost is material or is not.
In Amendment No. 249 I propose that the word "staff" be changed to the word "employees". I do not know where the new concept of staff as distinct from employees has crept into the Bill. We have already found ourselves debating the difference between workers and employees—I think during the previous session—and we certainly should not need to introduce yet another word that would cause confusion and a distinction, perhaps without a difference, and create grounds for nit-picking litigation.
Amendment No. 250 alters paragraph (4) which deals with the recruitment of what the Bill calls "staff" and who I propose should also be called "employees". It has to be the case that the employer should be recruiting employees of similar capacity on similar terms and conditions. The employer cannot be compelled to recruit a replacement, whether capable or not, and who expects different wages and different employment terms. All the employer should be required to do is to replace like with like. The amendment makes it clear that the replacement or supplementary staff to be recruited should be suitably qualified to meet the employer's needs.
Amendment No. 251 to paragraph (viii) is essential because as drawn it simply does not make sense. Even without my amendment to the preamble and using the words of the Bill, it reads:
- "one or more of the following grounds as applies
- (viii) planned structural changes".
- "one or more of the following grounds applies
- (viii) incompatibility with planned structural changes".
I now turn to Amendment No. 253. New Section 80G(2) specifies the regulations that may be made governing an application for variation in terms of a contract. Paragraph (k) makes provision for an employee to be accompanied by someone of a description prescribed by the intended regulations. I assume that this is likely to be a trade union representative or a fellow employee, but whoever it is there is no provision for an employer to receive similar outside assistance. I think that that is unfair. It is also yet another breach in the Bill of the Human Rights Convention, notwithstanding the certificate that the Minister has given. Everyone is entitled to be represented by counsel, whatever qualification that counsel has, for the purposes of the Bill.
Amendment No. 254 is to have the new marginal note:
- "Reduction or withdrawal of benefits under Section 80F application".
Members of the Committee will notice that the amendment refers to benefits paid to the employee, which makes it clear that the amendment refers to cash benefits and not to benefits in kind such as holiday time, company car and such like. It applies only in cases where the working hours are reduced. It does not apply where, for example, it is a simple case of a change in the actual time that the employee works. It refers to profit-sharing schemes, bonuses and other cash paid to employees working under a standard contract.
The second leg of the amendment, in paragraph (ii) is a long-stop in case there is some form of benefit that cannot be prorated. For example, if an employer pays for an employee's season ticket in return for a 40-hour week and the employee reduces his or her hours to 32 because of taking a three-day weekend, that benefit ought to be reduced. I cannot give any other examples, but I wish to ensure that there is no loophole. It entitles an employee whose cash benefit cannot for some reason or other be prorated to be given a different cash benefit instead.
I now come to Amendment No. 256, which is the last in this group. New Section 80H(i) specifies the grounds on which an employee may complain to a tribunal if he is refused a variation in his contract. Paragraph (b) gives as one of the grounds that:
- "a decision by his employer was based on incorrect facts".
4 p.m.
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