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Lord McIntosh of Haringey: Of course, my Lords.

Baroness Turner of Camden: My Lords, in the meantime, with great regret, I have no alternative but to withdraw the amendment. It is a good amendment; it is well drafted—the Minister himself acknowledged that—and it is a reasonable amendment in the circumstances. I do not understand why employees who are covered by the Bill should not have the benefit of a no detriment clause, as already exists in other legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 109 not moved.]

[Amendment No. 110 not moved.]

Clause 45 [Fixed-term work]:

Lord Razzall moved Amendment No. 111:

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 114, with which it is grouped. The purpose of these amendments is to return to our discussion in Grand Committee. They would extend the rights of an employee against discrimination to fixed-term workers who are not also employees and so, we submit, give proper effect to European Directive 1999/70/EC. I am not entirely clear from our discussion in Grand Committee—we shall await with interest what the Minister has to say—whether the Government do not believe that the provision should extend to fixed-term workers who are

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not also employees or whether they think that the clause as drafted provides sufficient cover for fixed-term workers.

We believe that the clause as drafted and what we know about the regulations to be made under it relate specifically to employees—that is, individuals who have entered into or worked under a contract of employment. That is insufficient to give effect to the directive because it does not cover the broader category of workers.

I shall not repeat our discussion in Grand Committee about how Section 230 of the Employment Rights Act 1996 defines workers, but I assure noble Lords that it does. In that section, as the class of "employee" is entirely enclosed within the class of "workers", extending the coverage to "workers", as I propose, would cover all "employees" as well.

Directive 1999/70/EC itself gives effect to the ETUC-UNICE-CEEP framework agreement on fixed-term work. As the Minister will be aware, clause 2 of that agreement provides that it should apply to,

    "fixed term workers who have an employment contract or employment relationship as defined in law, collective agreement or practice in each Member State".

Clause 3 of the framework agreement defines a "fixed term worker" as,

    "a person having an employment contract or relationship entered into directly between an employee and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task or the occurrence of a specific event".

So it appears that the framework agreement is intended to include workers who are not also employees. We submit that limiting Clause 45 to employees means that it does not give effect to the framework agreement incorporated in the directive. In Clause 45 the Government are legislating to implement the directive.

There are two issues here: first, do the Government intend to include fixed-term workers under the Bill in addition to employees? If not, why not, because the directive requires it? Secondly, if the Government claim that the clause as drafted covers both categories—fixed-term workers and employees—we believe that that is wrong. In those circumstances, incorporating Section 230 of the Employment Rights Act 1996 would do the job more felicitously. I beg to move.

Baroness Turner of Camden: My Lords, I support the amendment. In Grand Committee, I spoke to a similar amendment and I support everything that the noble Lord, Lord Razzall, said. I am concerned that certain types of worker will be excluded from the Bill's provisions—in particular, people working on short-term contracts in the construction industry, who used to be called workers on the lump. They were supposed to be self-employed but in reality were not. They should be covered by the Bill. I support the amendment.

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5.30 p.m.

Lord Sainsbury of Turville: My Lords, Amendments Nos. 111 and 114 seek to amend Clause 45 by placing a duty on the Secretary of State to make regulations that would ensure fixed term workers are no less favourably treated than comparable permanent employees. However, I believe that the intention of the amendments is to question the coverage of the entire clause rather than its first paragraph only.

We take the view that in making provision about employees we are fully implementing the European Community fixed term work directive. Let me explain why. As the noble Lord rightly said, the directive requires us to legislate in respect of,

    "fixed term workers who have an employment contract or employment relationship as defined by national law and/or practice".

It is clear from these words that this is not a case where there is a single, Community-wide meaning of "worker"; therefore the UK can choose its own definition provided that it is defensible. The use of the word "worker" in the directive does not mean that the UK must implement in respect of all workers.

We take the view, both on underlying legal principles and precedent from the UK's existing employment legislation, including the implementation of other directives, that it is within the UK's discretion to implement in relation to employees only. In so doing, we would be replicating the coverage of most domestic UK employment rights legislation, including rights related to collective redundancies and European works councils, rights to parental leave and written statements of employment particulars. All of these implement EU directives. We would also be protecting those most likely to have the length of their working relationship determined by reference to time in line with the purpose of the directive.

It has been argued that the reference to "employment contract or relationship" in the directive requires us to cover employment relationships other than contracts of employment. The draft Fixed Term Employees (Prevention of less favourable treatment) Regulations cover not only employees but also Crown servants, House of Commons and House of Lords staff and certain police officers who are not employees. These categories of person will not necessarily have contracts of employment. Applying the regulations for these employment relationships replicates the coverage of other domestic legislation. The wording in the directive was also used in the parental leave directive. Regulations implementing that directive apply to employees only.

I have seen no evidence that fixed term non-employee workers are being less favourably treated than comparable permanent non-employee workers because they have fixed term employment relationships. It is therefore very difficult to identify any beneficiaries of an extension in the coverage of the regulations.

The key group of workers who might qualify as workers but not as employees are agency workers. As my honourable friend in another place pointed out, the

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fixed term directive specifically states that it does not apply to temporary agency workers. This does not mean that all other workers are included on the grounds that they are not specifically excluded. In particular, the directive does not cover members of the Armed Forces, but there is no specific exclusion.

As noble Lords will be aware, we are currently conducting a review of employment status in relation to statutory employment rights. As my noble friend Lord McIntosh informed the House on 2nd June, we intend to publish a discussion document on this issue as soon as possible. This will seek views on the current definitions used in employment law and whether there may be a case for extending the coverage of certain rights.

I hope that I have answered the noble Lord's questions. It is difficult to see who would benefit from the amendment. It is also not timely given that we are currently conducting a review of employment status in relation to statutory employment rights. I hope that that explanation of our thinking is helpful and I would ask the noble Lord to withdraw the amendment.

Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, I understand his argument that we have a discretion to implement the directive; I understand his argument that there is no European-wide definition of "employee" or "worker"; but I do not understand his argument that we are under no obligation to implement the very clear statement in the directive. The directive states that it covers those under a contract of employment—in British terms, such people are employees—and those in an employment relationship, obviously without a contract of employment. It then states that some of the people under an employment relationship are not included—that is, agency workers, as my noble friend rightly said.

The interpretation which restricts implementation in the British sense to employees is patently defective. Why does my noble friend insist that public money should be wasted on litigation in the Court of Justice in Luxembourg, which undoubtedly will be in prospect if the Government fail to implement the directive in the way that the noble Lord, Lord Razzall, suggests in his amendment?

Lord Sainsbury of Turville: My Lords, it is quite clear that we have been given different legal advice. The terms of the directive state:

    "fixed term workers who have an employment contract or employment relationship as defined by national law and/or practice".

That seems perfectly in keeping with the line we are taking.

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