Examination of Witnesses (Questions 60
- 79)
WEDNESDAY 11 FEBRUARY 2004
Mr Martin Couchman, Ms Susan Anderson, Mr John Francis,
Mr David Frost and Mr Benjimin Burgher
Q60 Baroness Brigstocke: It might mean that
everyone had to take a bit longer over everything?
Mr Burgher: Indeed and, as I mentioned earlier,
it is not necessarily the right equation to go straight from long
hours and poor productivity. There are a number of factors and
parameters which have to be fully and properly considered before
coming to that conclusion.
Q61 Lord Colwyn: Some of us on this Committee
are very wise and well versed in European matters and some of
us are new—I am afraid I am one of the latter so my questions
are slightly naive! I am self-employed so none of this applies
to me at all but if I was to start a registered company in a few
weeks' time, in my naive question, and I wanted to be part of
the opt-out, would I have to apply for my opt-out? Does it cost
me to apply for it? Would I have to register for the opt-out and,
assuming I do that, is the situation, as it is at the moment,
working okay? Should we be happy the way the things are existing
at the moment? I understand the problems if the opt-out is taken
away. Moving on, also, the Commission are talking about harmful
effects and accidents for long working hours, but is there any
evidence of this at all? Are you looking into evidence, or is
it either way, evidence that is harmful or not?
Ms Anderson: John could explain how it works
in their company in terms of individuals, and how the opt-out
works in practice.
Q62 Lord Colwyn: What percentage? How many
registered companies have the opt-out? One hundred per cent?
Mr Francis: We employ 30,000 people in the United
Kingdom so within our distribution of service arms we have over
5,500 people where the opt-out is in place for individual opt-out.
The way we operate that opt-out procedure is that people receive
their contractual conditions plus lots of other bits and pieces
as well around pension obligations and so on. When they join us
and they start their induction programme they then are given the
opt-out form itself because, during the induction process, we
talk to them about their shift and roster arrangements because
we clearly work over a 7-day situation, so at that time those
individuals can decide whether they wish to opt-in or out. If
you take the take-up of that, when I analysed it a couple of weeks
ago, 50 per cent of the people decide to choose to opt-out and
that is to give them the flexibility to extend their working day
or their working week flexibly for them rather than having to
come to that when there might be a reason for a short term peak
or something like that. Now, I know that in some of the other
work I do, because I also work on behalf of the British Retail
Consortium, most large organisations such as us in retail operate
those principles.
Q63 Lord Colwyn: So you can have workers
who have opted out and workers who have not opted out within the
same operation?
Mr Francis: Absolutely. I can give you a different
parallel just to make some different sense of this. For at least
two decades now people in retail have had the choice of opting
out of Sunday working, so those principles have been in place
for a long time, and there have not been any difficulties around
that. We have always operated those same sort of principles; it
is people's choice. Any quality employer is into retention. Your
people are your best asset on that basis and, therefore, you are
not going to undertake to put things on to them whereby you are
going to force them out of an organisation. Effectively you want
them as volunteers on that basis if they are going to work overtime.
Mr Frost: And that process works exactly the
same for small firms. On an individual basis, the employee is
given the option to opt-in or out.
Q64 Lord Colwyn: What about the accidents?
Ms Anderson: The case is not proven. The evidence
on health and safety is quite a mixed, complex picture. Those
self employed people who work long hours are often the happiest
people and enjoy their jobs but, in terms of health and safety,
where there are problems it is often the people working constant
night shifts and the people who have the irregular working patterns—nurses
would be an example. They do not like to have their working patterns
constantly disrupted by a few days on nights and a few days on
days. Also shift working can be a problem. So those are the issues.
There are health and safety issues there and studies have shown
some link, but not necessarily between long hours, and we draw
attention in our evidence to the fact that the BMA found that,
where it was a question of choice, the individuals were less likely
to report health problems where they were working longer hours,
so I do not think one can say there is conclusive evidence to
show that long hours can be a detriment to health. Clearly, if
you are working 80 hours a week on consistent basis week in week
out, you are not going to be doing yourself any good, but I am
afraid we all know workers in our work places who refuse to go
home. There are many people who refuse to turn up to work but
that is another issue! I think the case is more complex than the
European Commission likes to think when it says this is about
the health and safety issue.
Mr Francis: Building on the question, working
time is seen in a very small compartment around the issue of health
insofar as it was brought in under the health and safety legislation.
If you take most organisations now with regard to job design,
job design in itself leads one to look at risk assessment, and
most organisations have quite sophisticated risk assessment programmes
in place. Long hours, or the requirement for an individual to
have to work long hours, would form part of that risk assessment,
so if you come back to a duty of care, if you come back to wanting
to retain quality people and maintain that labour force as you
want to be competitive, you would build this into your risk assessment
and see whether that requirement to work long hours is intrinsic
to the job and whether you should take it out as a risk. I do
not think, therefore, that you can look at working time all the
time in isolation. You have to build it into the broader aspects
of work around risk and the future around people feeling stressed
on that basis. It cannot be an isolationist approach.
Mr Frost: From the work we have done it would
seem obvious there is some link between long hours and fatigue.
If someone is working 100 hours a week it is quite clear they
are going to suffer more fatigue than someone working 35, but
what there is no evidence on is how many hours need to be worked
before that fatigue comes in. Flipping on to the other side of
the coin, from the work we have done there is no evidence from
amongst our members or employers that opting out of working time
is having any impact on health and safety.
Q65 Lord Howie of Troon: I am wondering
about the effect of the Directive. Does the Directive mean that
while you are there you have to work, or does it mean you have
just got to be there? I recall when I was a young civil engineer
quite a long time ago in the late 1940s, we used to work on Saturday
morning. This was quite an agreeable affair since most of my colleagues
came in in their plus fours ready to move on to the golf course
in the afternoon. There was not much productivity there! Is there
something of a miasma about this insistence on long hours, if
that is the right word?
Ms Anderson: You have just raised one of the
very important issues in recent court cases about when you are
at work and when you are at the disposal of your employer. It
is not just a big issue in the Health Service but also an interesting
issue in the hospitality industry.
Mr Couchman: Yes. It has not come up in a formal
sense yet but something like 30,000 people perhaps in the hotel
industry live in the hotel and sleep there all night for example
because they are going to cook breakfast next day. If these cases
were taken to their logical conclusion, because these people are
under a sort of obligation, if there is a fire, to help get the
guests out and help put the fire out, or whatever, because they
are working at that time they would not be able to do any other
work. So the logical conclusion becomes a bit of a nonsense.
Q66 Chairman: We are going to have to look
at this in detail, not only in the Health Service but elsewhere.
Mr Frost: It is an important point. There is
a lack of clarity and there needs to be a redefinition, in our
view, to exclude on-call hours.
Chairman: We are going to have to come
to that. It is such an important issue, we are hardly likely to
avoid it in our report.
Q67 Baroness Brigstocke: Returning to something
John Francis said, it is very interesting that there are people
in the work force who have opted out as well as those who have
not, and I wondered if you had any evidence, either in your company
or elsewhere, that those who opt-out of, say, Sunday working do
not get promotion as much as those who say, "Oh, well, I
will work all the hours"?
Mr Francis: If you are talking specifically
about my company, absolutely no way. We do a lot of work around
flexibility anyway. Our drivers are what the customer requirement
is in satisfying customer demand. If you are operating in some
of our environments seven days, 24 hours, 365 days of the year,
there are enough opportunities for people to further their career,
and certainly we would not take that approach with somebody saying
"No". It is not structured like that and I do not know
other organisations on that basis.
Ms Anderson: In terms of the numbers who are
covered, our survey evidence indicates that far more people sign
the opt-out than probably need to. We estimated, according to
our survey, about a third of the employees have signed an opt-out
but less than 20 per cent, 18 per cent according to our calculations,
and it is not a precise science, were working such hours that
they needed to be opted out. Some employers will do it on a just-in-time
basis and say, "If your hours are getting excessive, perhaps
we ought to opt you out", but others will take a more safety
net approach and say, "It could happen, sign it now if you
want to", just so you have got that security blanket.
Mr Francis: I could give you a different sort
of measure which answers the question differently. We have categorised
on our intranets an expert system where people can raise questions
and answers, so individuals can just ask their question and the
machine will respond so it matches questions and answers, and
on our working time regulations the greatest number of questions
that come up from our employees, the key areas, are not to do
with opt-out but are to do with understanding holiday calculations
and breaks. Now, the machine automatically escalates if it cannot
respond and comes directly to me, and those escalations are around
people saying, "I want to have clarity; I work in a contact
centre, tell me what it means on a break". So it is not to
do with the opt-out but is to do with those other structural aspects
of work.
Chairman: Lady Greengross, if she were
not self-employed, would be breaching the Working Time Directive
very quickly because she has to go off to another meeting, but
she would like to ask a question in the meantime!
Q68 Baroness Greengross: My question is
about how we compare with other EU countries. The European Parliament
really had a go at us, we thought, in no small measure and I really
wonder firstly how we compare with the other countries in the
EU in terms of this? Do we work much longer hours and is that
going to affect our competition? You have partly answered that
but, secondly, if all this goes through, the opt-out goes and
there is nothing we can do to stop it, do you think that
there are some concessions—and Ms Anderson you have really
said some of the problems may not be as great as some people have
thought—we could make without damaging the United Kingdom
economy? Would the reference period of a year, which was suggested
as being in a way the trade-off for the opt-out, work?
Ms Anderson: The short answer is we think we
need the opt-out. Obviously 52 week averaging would help and being
able to do that without having a collective agreement would be
useful; clarification of exactly who is in this autonomous workers
group would certainly be most gratifying, but we think—and
this would be an interesting question to ask the trade unions
as well—people are happy by and large with the opt-out in
the UK. It suits both employers and employees. We do not get,
as John has indicated, numbers of employees coming along saying
they are very unhappy with it. You get some saying, "There
is opt-out and I want to take it", but you probably get more
employees saying, "Where is my overtime, which I have a right
to"? One of the court cases that the Barnard Report refers
to was an individual, a caretaker, who was working 50 odd hours
a week and took his employer to court for taking those overtime
payments away from him. He thought overtime was his right and
he did not want it taken away. Employees are happy and employers
are happy and we cannot see what the problem is and we are seeing,
interestingly, more Member States expressing an interest in the
opt-out. Certainly from the employer community we know from our
contacts, for example, in Germany and Sweden, that they are interested
now in the flexibility that the opt-out gives them. The other
key issue is that of "autonomous workers"—we understand
why the Government did it but we started looking at what other
Member States had done in interpreting the Directive and we looked
at, for instance, the case of the Netherlands where they say that
if you are earning more than three times the national minimum
wage you are excluded. That is wonderful and very clear; all about
looking at the spirit of the Directive which is protecting vulnerable
workers. We are up for that, we do not want employees being abused,
but let's look at the spirit and not the letter. Other Member
States sign a collective agreement saying, "We are all happy
with this", and we say fine, but we are wrapping ourselves
up in too much red tape and not looking at the spirit because
we are always fearing a ECJ case. We fear these cases more than
other Member States and are taught to look more at the spirit
of the Directive rather than rigidly adhering to it. We do think
the opt-out is essential to the United Kingdom. We do not think
there are concessions that would take away the problem but merely
alleviate it. I do think we need the opt-out, and the interesting
thing is more Member States than the European Commission were
aware of were using the opt-out, and more Member States are now
expressing an interest in it, and Martin has some interesting
figures just looking at the hours that are worked in other Member
States which are clearly not in line with the Working Time Directive.
Mr Couchman: Yes. This document is a Eurostat[11]
document. We have four existing Member States in hospitality,
hotels and restaurants where the average worked is more than 48
which is not possible under the Directive and under local laws,
yet they somehow manage to work more than 48. We are trying to
keep to the rules and I am not saying they are cheating, but something
is going on which the Commission has not taken note of, shall
we say.
Q69 Baroness Massey of Darwen: Supposing
someone has two jobs, which is something you must find in your
industry. How is that calculated? Are they both added together,
or what?
Mr Couchman: For younger workers, 16 and 17
year olds, there is an obligation, as I recall, on the employer
to check and take that into account. There is no formal obligation
for older workers, though a lot of companies do say in their contract,
"You must tell us if you have another job", because
obviously it is part of their whole business of duty of care.
If somebody does not tell you, there is not much you can do about
it and there are many industries, and we are one, which has over
100,000 people with a second job, so if you spread that round
the economy there are a lot of people over 48 overall but under
48 with the main employer.
Mr Francis: Most organisations would adopt the
practice we do which is that on the application form you are asked
to declare whether you have any other employment so that we are
quite clear about that, and I think that is probably best practice.
Q70 Baroness Massey of Darwen: But then
if you take another job you are moonlighting, which is against
the law anyway.
Mr Couchman: Not necessarily. They may be paying
tax and National Insurance perfectly legally—some may not
but some may well be. I do not think the employer is going to
find out from the tax authorities if that employee has a second
job. I do not think their coding is going to be affected by it.
Q71 Lord Howie of Troon: The reply we got
came from the hospitality world which is I think somewhat special,
is it not—
Ms Anderson: We like to think so!
Q72 Lord Howie of Troon: Well, half are
part time anyway, or a number are. How do these figures differ
between ourselves and the Continent in, for example, the manufacturing
industry?
Ms Anderson: I am not really sure of the question
you are asking.
Q73 Lord Howie of Troon: I am asking about
the comparison on hours of work between ourselves and the Continent.
Ms Anderson: The interesting comparison is that
in the United Kingdom we have a much bigger spread of working
hours, so we have much better opportunities. For example, if you
have a commitment to child care you can work on a part time basis;
the United Kingdom has the second highest incidence of part time
working; 25 per cent of the United Kingdom work force works on
a part time basis, which is second only to the Netherlands; we
have the third highest female participation rate here in the United
Kingdom; we have the opportunity to telework, to do seasonal work,
to work on a term time basis, and all these things, when we talk
about the whole work life balance issue, are very beneficial in
the United Kingdom. Across the piece we have a lot of opportunities
for individuals to choose the hours they want, and that is partly
about pay but also about work life balance. In the United Kingdom
we can be very proud of the opportunities that we provide to allow
individuals to choose. One of the other questions that you had
on your list was about whether this is making female participation
difficult. Well, women with child care responsibilities often
want to work on a part time basis and we should not just look
at this through one end of the telescope but should be celebrating
in a sense the richness and the variety of experience on offer,
the fact that we have lots of flexibility, we can work on Sundays
or not, work part or full time, telework, work just in the summer
if you are a student in the United Kingdom, rather than just say,
"Oh, it is all to do with long hours, let's lash ourselves
and criticise".
Q74 Lord Howie of Troon: That is very interesting
and reassuring but it is not the answer to the question that I
asked. Let me repeat it. Is there even a crude statistical comparison
between the hours worked in manufacturing industry in the United
Kingdom and in comparable countries in the European Union?
Ms Anderson: Yes. The data is collected by the
national statisticians and, as I said, the issues around long
hours are not in manufacturing but in construction, transport,
agriculture, and communication to a certain extent. Those are
the areas where we have the long hours—not necessarily in
manufacturing. We can let you have the data.
Q75 Lord Howie of Troon: Tell me about construction,
if you would rather.
Ms Anderson: We have not come armed with it
today but we can send it.
Q76 Lord Howie of Troon: Thank you very
much.
Mr Frost: I do not think there is any question
that we work longer hours compared to the major continental countries
in terms of manufacturing. The issue is why do we do that, and
I think we have to look at the evidence we have which is that
a number of employees want to do that. There is a very strong
drive from the employees to ask the employers to work those hours
to generate extra income that they want to spend. Most of the
drive for extra hours is coming from employees. Secondly, we have
to look at the success of the United Kingdom measured against
our continental competitors. At the moment we have low unemployment
and high growth, and our view is there is a strong correlation
between the flexibility we have in the United Kingdom work place
compared to the inflexibility that exists within continental Europe
at the present time. The third point I would put on top of all
of that is we have the supposed Lisbon Agenda that we want to
turn Europe into the most dynamic flexible economy in the world,
and we believe that the approach that has been adopted in the
United Kingdom in terms of a flexible approach in the labour market
will help us achieve that, and an inflexible approach will not.
Q77 Baroness Greengross: Just briefly on
that, is it a fact that our manufacturing industry is more successful?
I am quite involved in the question of whether we go into the
euro or not and I keep hearing about manufacturing industries
that are not flourishing and that we are even losing some because
some of the global companies are placing their manufacturing plants
in other European countries because we are not in the euro. I
would like to know what your view is and whether the Working Time
Directive has anything to do with the productivity as it is seen
by the people who prefer, say, to put their plant in Spain rather
than here. Has that anything to do with the euro, in your view?
Mr Frost: The evidence that we have is clearly
that there is a degree of offshoring going on at the moment in
manufacturing but it is not going in the main to continental Europe
but to the new accession countries or, more significantly, to
the Far East. Why is it going out there? Essentially it is a very
low cost economy in which to do business and therefore what is
happening within the United Kingdom is that we are concentrating
far more on higher value added sophisticated technological products.
Again, I would come back and say that we must maintain the flexibility
because for every degree of inflexibility we put in we will see
more companies move offshore. Alternatively the United Kingdom,
which has been an extraordinarily successful place for foreign
companies to invest, will lose that attraction.
Q78 Lord Harrison: Following that up, I
am still interested in this continental opinion, particularly
your fellow employee organisations like UEAPME, EUROPMI, UNICE
and HOTREC—and I have provided the stenographer with the
appropriate acronyms! My knowledge of them is that often UNICE,
for instance, would go along with the Commission and would not
necessarily agree with the CBI, and UEAPME may be the same. Let
me ask the question this way: are they of the view that, broadly
speaking, the WTD is right or are they saying, "Our colleagues
in Britain have got it right and we would like to move to a position,
broadly speaking, where they are"?
Ms Anderson: It is interesting that things are
changing. The court cases demonstrate the need for flexibility.
The SiMAP case has many sectors and companies in Europe worried.
UNICE itself has been re-evaluating the position, and one of my
colleagues is going to a meeting on Friday to discuss this very
issue and I would be happy to share with you the UNICE response
when it has finally been agreed, but I think it is very likely,
in fact I think I can say almost certain, that UNICE will argue
in favour of keeping opt-out. UNICE has already written to Anna
Diamantopoulou, the relevant Commissioner, to suggest that we
need to keep the opt-out. The concern is about flexibility and
increasingly colleagues within employer employee bodies in other
Member States are recognising, as David was saying, that we need
to move the Lisbon Agenda on, we need flexibility, and therefore
it is probably likely that UNICE will argue very strongly to keep
the opt-out. They would like the flexibilities that the European
Commission is offering around more flexibility on the annualised
hours provisions, but things are changing very much and other
EU States are recognising that the flexibility that we have in
the United Kingdom is beneficial. They do not want our skills
problems but they certainly would like some of the flexibility
we have. I cannot talk for other smaller firms' bodies, but certainly
the CBI represents smaller firms and we know they feel as strongly
as the larger firms on this issue.
Mr Couchman: I asked my Dutch and Danish colleagues
recently whether they would wish to change the Directive and they
said they did not, not because it is perfect but because they
already have tougher conditions and much tighter restrictions
on the way they run their businesses. They are very jealous of
the flexibilities we have managed to get out of it.
Q79 Lord Harrison: That is quite a material
point, then, because if your fellows in the Employers' Federations
are not saying, "We should move to the United Kingdom position"—
Mr Couchman: They would like to but they already
have, in some cases, collective agreements and national arrangements
which are stricter.
11 Rising employment in hotels and restaurants by
Hans-Werner Schmidt (ISSN: 1561-4840. Catalogue No. KS-NP-03-006-EN-C)
From Eurostat series: Statistics in Focus-Industry, Trade and
Services. Theme 4-6/2003. The relevant table is no.4 (page 6)
on the working week in hotels and restaurants, 2001. Back
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