Examination of Witnesses (Questions 239
- 259)
MONDAY 8 MARCH 2004
MR GERRY
SUTCLIFFE AND
MR JOHN
HUTTON
Q239 Chairman: Ministers, can I welcome
you on behalf of the Sub-Committee on Social Policy and Consumer
Affairs of the House of Lords Select Committee on the European
Union. We are setting a good precedent by starting three minutes
early; that is not the normal way in parliamentary business but
we are very grateful to you for coming along. There are just one
or two practical points. The first one is that this is being recorded
for broadcast or webcast, so not only what you say but also your
little asides may even be picked up, so I give you notice of that.
Secondly, we are on a very tight schedule, not just today but
overall. We are extremely keen to complete our report, if possible,
before the Commission gets on and finishes its consultation and
moves on to the next stage and we want to influence them if we
can. You will get a transcript at the end of the session, correct
it as you would wish but could you give it back to us fairly quickly
because we want to keep things moving to get our view in fairly
quickly if we are going to have any influence at all. Obviously,
it is for Government as well as for us at this point. Those are
the main points. The acoustics are rather bad, as they always
are in these committee rooms. So, if you could keep your voices
up, that would be helpful. We have had material from you, both
departments in form of the revised background material and an
explanatory memorandum, so we are well on. There are a number
of questions but I do not know if either of you would like to
make any opening statement.
Mr Sutcliffe: Chairman, I would like to start
by commenting of the Spring Council Meeting or the informal meeting
we had as Employment Ministers last Thursday and give the Committee
a feel and update as to how things are progressing as far as we
saw it. At the Employment Ministers' meeting, we have a lunchtime
session, which is an informal session, where Ministers get the
opportunity to discuss key important issues and the Irish presidency
felt that the Working Time Directive clearly was one of those
discussions that we ought to have. I had the opportunity to speak
first because the UK's position, particularly on the opt-out although
the opt-out was not the only part of the discussion, clearly was
important. I spoke first and was followed by four colleagues who
all supported the UK's version of events in relation to the use
of the opt-out. I found it a very positive discussion. It was
a discussion that is not minuted in the sense that the only reporting
of the discussion comes in a press conference following the lunch
with the Presidency and the Commission. In that press conference
was an acknowledgement of the whole issue around the use of the
opt-out with many Member States agreeing in a variety of ways
that the opt-out should remain in a particular format and the
clearly the principal part of the discussion was on this SiMAP
and Jaeger problem in terms of the judgments and the
Commission acknowledged the difficulties that Member States were
facing and promised to have a solution, particularly on SiMAP
and Jaeger, before the summer which fits in with the
timetable on the 31 March reporting back on the Commission's request
to Member States and other organisations for a review on how the
Working Time Directive was working. So, from a UK position, I
found the lunchtime meeting to be a very positive meeting. There
were clearly issues around potential abuses of the opt-out proposals,
but most Member States spoke in favour of the opt-out and were
very positive about the need to have flexibility set against the
Kok and Lisbon Agenda in terms of creating employment.
Q240 Chairman: That is encouraging; we are
glad to hear that. Mr Hutton, do you wish to add anything?
Mr Hutton: I am very happy to respond to any
of the Committee's questions in relation to how the Directive
will impact on the National Health Service itself in England,
but I think generally I would just want to echo what Gerry has
just said. I think it is quite often the case that we tend to
imagine in the UK that these problems are unique to us in Britain,
but they are not. Many other countries in the European Union are
facing exactly the same difficulties that we are in relation to
the Directive, particularly in the light of the recent interpretations
placed on the Directive by the European Court in the SiMAP
and Jaeger cases and, in a sense, I take from what
Gerry has just said and also in my own contacts with European
Union Health Ministers that there is a genuine desire to find
a sensible solution to this as quickly as possible in a way which
does the least damage to all of our respective healthcare systems
and avoids very large and unnecessary and possibly wasteful expenditure
when we have other things that we would prefer to do with the
resources at our disposal. So, I think there is reason to be optimistic
that we will find sensible solutions to SiMAP and Jaeger
but, in the meantime, as I am sure will be clear when we come
to the questions you have for me, the NHS faces a very, very significant
challenge indeed in making sense of the Directive as it is currently
being interpreted and I would not want to leave the Committee
in my opening remarks with anything other than the impression
that this is a major challenge for us and one which is certainly
going to tax the resource and resilience of the service to the
very fullest extent.
Q241 Chairman: If we can now move to the
questions. The questions cover a range of matters and we leave
it to you as to who leads or who replies. I think some of them
will fall obviously on the health side and some on the competitiveness
side and one or two will be more general. We have been struck
by the fact that the Working Time Directive was actually introduced
as a health and safety measure, originally under Article 118 of
the Treaty, which is a Health and Safety article. There is not
much evidence about whether the opt-out in its current form is
causing any significant health and safety problems. Do you think
that there are health and safety issues which are relatively serious
or not on the existence of the opt-out?
Mr Sutcliffe: On the whole, I think we would
agree with you, that we do not believe it is a serious problem
in terms of how it affects health and safety issues in the UK,
and we cite as the example the UK's figures measured against the
European Member States in terms of, for instance, the rates of
fatal injury of 100,000 workers. Currently, the UK is at 1.7,
only to be bettered by Sweden as Member States go and, on most
other indicators on serious accidents, the UK was better than
everyone except Sweden and Ireland. So, we are quite high up in
terms of our performance as you would expect us to be, given the
culture of health and safety at work legislation that came into
the UK. Health and Safety is important to us but we do not see
the opt-out damaging in any way the health and safety provision.
There are issues about potential abuses which we will come on
to later but certainly, as a whole, we believe it is not an issue
as far as health and safety is concerned.
Chairman: That was a general question
covering the purpose of the Working Time Directive which occasionally
gets a little overshadowed in some of the evidence we have had.
Q242 Lord Colwyn: When we saw the TUC the
other day, they gave us some evidence and they said that the Health
and Safety Executive estimate that stress-related illness costs
the UK employers £1.24 billion and yet this has not led to
a change in working hours, and they thought this was because the
employers bear the lesser part of the cost and it is down to the
NHS. They talked about a crane that collapsed killing three people,
the driver of which had been working 100 hours. How do you react
to this evidence from the TUC who are patently not in favour?
Mr Sutcliffe: The issue on stress does not just
apply to the working hours culture. I think the issue of stress
is something that we are looking at as a department with the employers'
organisations and the trade unions, looking at occupational health
schemes and looking at different ways of evaluating what the levels
of stress and the causes of stress are. I would not particularly
put it at just the long hours position. We have asked the TUC
for hard evidence of cases and, so far, we do not see a trend
that indicates that it is just because of the opt-out that there
are significant health and safety problems.
Q243 Chairman: Can I move to the point about
competitiveness. We have lots of evidence on this and your
officials indeed and the employers' organisations, of course,
have argued that the opt-out is a very important ingredient in
the flexibility of British competitiveness, but it does only apply
to various categories of work and only around 20 per cent or so
of full-time employees work more than 48 hours a week on average.
It is really a key question of how important you think the opt-out
is for British business?
Mr Sutcliffe: If I could start by explaining
my own background. Prior to being an MP in 1994, I was a full-time
trade union officer in the printing industry and, before that,
a shop-floor worker on a factory floor in the printing industry
and I will be able to give you examples of areas where I think
the different types of work patterns and the different types of
shift patterns concur with the need for greater flexibility not
only in that industry but in a whole range of other industries.
I think that the backdrop to the present discussion is where we
are in terms of trying to create employment. I go back to the
Kok report and the Taskforce report just lately and the Lisbon
targets about trying to create jobs in the UK and in the rest
of Europe. I think that flexibility is a key issue. It is an issue
about confidence in employment and confidence in markets and it
is on record and accepted that the UK has a good flexible approach
to employment, that is not to exploit people but to say that there
is an issue of choice that is available to people. I think we
have shown that we have achieved the targets already set out by
Lisbon and I have been trying to say to our European partners
that a flexible workforce is important as far as competitiveness
is concerned. It is a change as well in terms of style of approach
in employment relations which I think is important and, as Employment
Minister, I am keen to change from the adversarial culture that
has existed in the past to a more consensus approach and I point
to the Information and Consultation Directive as an example of
how we are trying to change attitudes in employment relations
in the workplace and, for me, the flexibility argument is important
provided that there are in effect clear rules to ensure that people
are not exploited.
Q244 Lord Howie of Troon: I have been a
member of sundry trade unions for a very long time now; currently,
I am a life member of the National Union of Journalists, so I
am interested in what the unions think about this. We have been
told by the TUC and others that British management to some extent
at least rely on long-hour working as an easy substitute for better
management. Firstly, is that true? Secondly, the unions argue
that ending the opt-out would create incentives or, in other words,
provide a stick which would make management more creative. What
do you think of that?
Mr Sutcliffe: The first point about the quality
and the need to improve the quality of management has shown itself
again in the round-table discussions we have had on the Information
and Consultation Directive which basically puts forward a no surprise
culture in terms of employees being involved in the future of
an individual company and what that company's needs are in terms
of its employment, its training and its development. In all the
discussions that we have had in certain sectors of industry, there
has been a concern from middle management perhaps in terms of
what that means. I accept the point that there is a great need
to improve and develop the training and incentives as far as middle
management are concerned, but I do not think that withdrawal of
the opt-out will automatically solve that. I think that we want
to maintain competitiveness and flexibility and that the opt-out
can be used in a positive way as far as trade unions are concerned.
I accept that, at this moment in time, it is a very emotive issue
in relation to lots of issues that are taking place and I think
there is something of a legacy, if I am allowed to say this, about
the previous Government's attitude to some of these issues and
the Commissioner's view on what the UK role is in these. I think
that sometimes tempers the way in which the Commission looks at
what is going on within the UK. I would point to greater flexible
working, we have legislated for greater flexible working, and
for looking at this idea of the work/life balance. I was very
pleased to present awards at the Parents at Work ceremony which
made the business case for how flexible working and how improved
work patterns could be advantageous to the bottom line of the
business case and, at those events, the trade unions supported
the idea of flexible and productive ways of working.
Q245 Lord Howie of Troon: I have also been
a manager as well as my life unfolded. Do you think that unions
are just sharpening their axe or do they have a really serious
point to make?
Mr Sutcliffe: I think there is a serious point
to make about the quality of management in a changed environment
and I think there is also an issue for trade unions as well. Within
the present Employment Bill, I have introduced a union modernisation
fund to look at how trade unions need to change to the new situation
of global competition and the changing nature of the world at
work. I think it is important to raise the agenda to where we
need to be on discussions about the demographic changes that are
taking place, the changes with the enlargement of the European
Union with the challenges facing us through globalisation. I think
there are real challenges from the union side in terms of modernisation
and development and from the middle management level and those
are points I have been making in the debates that we have been
having on issues affecting the employment agenda.
Q246 Lord Howie of Troon: I would like to
move on to question five in this paper which refers to collective
agreements. We have been told that the UK has fewer unionised
workers than most other Member States. I am not sure that that
is right, but so they say. The option of replacing the opt-out
with collective agreements has been suggested which means that
extending the reference period for calculating working hours to
12 months might not be feasible; do you agree with that?
Mr Sutcliffe: I think the point on fewer unionised
workers is as a percentage of the working population, not necessarily
in the numbers of union members. I think that moving to the reference
period of 12 months can improve the situation, but I still see
it as a separate issue in relation to the opt-out. The opt-out
quite clearly, from my perspective/the Government's perspective,
is one of flexibility and one of choice within a new environment
of changed attitudes within the workplace. I think there is an
issue about collective agreements. The UK is separated in the
sense that we do not have the coverage of collective agreements
available elsewhere in the EU. One area in particular that is
causing grave concerns is the construction industry with the Posted
Worker Directive which is highlighting some problems that we need
to face because of the lack of a collective agreement within the
construction sector. At this moment in time, as you will know
from your experiences, the history in the UK has been to support
voluntary arrangements and to support voluntary agreements. That
has been the style and the culture that we have adopted, but I
think there are—and this is in a personal capacity—need
to revisit some of these issues again.
Q247 Lord Howie of Troon: As a civil engineer,
I am glad that you mentioned the construction industry because
it is slightly weird! Surely the whole business of collective
agreements is quite compatible with the opt-out.
Mr Sutcliffe: Yes.
Q248 Lord Howie of Troon: And there is no
problem in that area where people are unionised.
Mr Sutcliffe: No, that is right.
Q249 Baroness Greengross: I want to go back
to European Parliament's view. I know what the British Government
feel about the opt-out, but they felt very strongly that this
ought to be phased out and I think they modified their decision
a little from 2007 to as soon as possible. If this goes wrong
in terms of the negotiations which you are carrying out at the
moment and we do have to abide by that, would it, in your view,
be reasonable in ten years or five years or how long would it
be, even if the NHS was an exception? What would be a reasonable
period of time for us to phase out the opt-out?
Mr Sutcliffe: I am not sure that I can answer
that because I think that we have tried to convince colleagues
and are making some inroads about why the opt-out is important
and why that element of flexibility meets with everybody's agreed
aspirations of trying to achieve both the Kok and Lisbon targets.
The European Parliament's view is quite clear. We have made representations
to the Social Affairs Committee and to individual Members of the
European Parliament, but it has to be a co-decision with the Council
of Ministers as well as, I gave in the report at the start of
these proceedings. Clearly, there is a view that is shifting now
in terms of the use of the opt-out format, not just because of
the impending problems around SiMAP and Jaeger,
but because of the need for a flexible approach. So, I would not
like to put a timescale on phasing out. Clearly, if after the
communication on 31 March and then by the summer following discussion
with social partners, a decision is taken, it will be they who
will have to look at the implications of that.
Chairman: We will come on specifically
to the SiMAP and Jaeger judgments; we know they
are coming but perhaps we could continue with one or two points
of a more general kind.
Q250 Baroness Brigstocke: I was very interested
in the amount of times you have used the word "flexibility"
which I think is enormously important and you have already also
mentioned the construction industry. I would like to ask whether
a phase-out with specific sectoral exemptions such as construction
and other seasonal workers might be another possibility worth
pursuing, and of course the Health Service might come into that
as well.
Mr Sutcliffe: I can understand why people might
be attracted to that as a solution. I personally am not; I think
it would probably lead to confusion. As it is structured at the
moment, the Working Time Directive is very clear about the entitlements
people get to the holidays and hours across the reference period
and the voluntary nature of the opt-out at this moment in time.
Where abuses are identified, the Government are keen to act. We
have spoken to both the CBI and the TUC about providing information
notwithstanding their current position, the CBI in favour of the
Government returning the opt-out, the TUC want to see the opt-out
being removed. Within that, we have tried to have discussions
around where the abuses are and what the issues are. Is it about
the recording of the opt-out? At the moment, it is done on an
annual basis, people put the form in to say that they want to
opt out. I would prefer to tackle any perceived abuses through
that route. To start to unpick the project and become more complicated
would lead to a great deal of confusion.
Q251 Lord Harrison: I have two questions
and, Minister Sutcliffe, you have already foreseen one of them
which is to do with the complaints of the TUC about significant
abuse of the UK regulations: coercion of employees to work longer
hours. Is it so difficult to establish the true scale of abuse?
I wonder if I could invite you to comment on the question of the
contract of employment. What we have been told from time to time
by witnesses is that, quite often, the opt-out is incorporated
in the contract which an employee is offered. Is there not, on
the face of it, already some imposition, some sense of coercion,
that is happening?
Mr Sutcliffe: I agree. I think that to have
the opt-out form arrive in the same letter as the contract that
has to be signed is not acceptable and that is something I have
said clearly on record in the House and in public and that is
the type of abuse that I would wish to see stopped. I have also
tried to discuss with the TUC and the CBI, as I have said, what
the better ways are to regulate and to find better ways of reporting
abuses and to use bodies like ACAS and others to adjudicate or
be part of a solution. Hopefully, we can still do that. We take
all questions of abuse very seriously. The opt-out is of a voluntary
nature—and it is a legal requirement that it is of a voluntary
nature—and, if it can be proved that that does not happen,
then we would need to act. That came out in terms of the discussions
at the ministerial meeting last Thursday with those Member States
that were looking at the opt-out or variations of the opt-out,
but the strong point came alongside that we had to make sure that
people were protected and that any abuses were tackled.
Q252 Lord Harrison: That is a very useful
answer. Can I just invite you to say a little more about the identification
of abuse, which it does seem quite difficult from the evidence
we have heard to pinpoint. There was some suggestion that the
Barnard Report, for instance, was misinterpreted. Do you have
a feel as to whether there is significant abuse or are we talking
along the lines that you have described in terms of the contract
of employment?
Mr Sutcliffe: My belief is that it is certainly
along the lines of the contract of employment. The Barnard Report
was very useful, but we do believe that certain areas were taken
out of context by the Commission in terms of extracting some of
the issues that were in there. As I say, given the background
that I come from, I have never knowingly known the trade unions
not to be able to put forward a strong case with strong evidence
base if there is a wealth of evidence about a particular position.
I have not seen that. The issues around the contract are very
clear. So, what I have said and what the computer says, if the
evidence comes forward that there is wholesale abuse, then the
Government will act.
Q253 Lord Harrison: We recall from the evidence
of the Federation of Small Businesses that they actually wanted
to go a little further and create an opt-in. From the answer you
gave on the opt-out being incorporated in the contract of employment,
I guess that you would feel reluctant to move there. Can I more
generally ask about the role of small businesses which is so vital
for competitiveness and for prosperity in this country. Should
we take small businesses in particular into account and be as
helpful as we can in this area where necessarily being small requires
much greater flexibility in the form of workforce?
Mr Sutcliffe: On the opting-in, the reasons
I gave earlier about the sectoral position and phasing out, we
would not be immediately looking at that or favour that as a solution.
I do believe you are right that we need to talk to small businesses
and do so on a regular basis and in fact I was with the Federation
last week in terms of their concerns about the weight of employment
law on their membership. It was not that they were opposed to
the issues that the Government were trying to achieve, it was
how they were able to implement for the reasons you have outlined
in terms of size and capability, and it is something that I am
particularly concerned about in my role as Employment Minister.
Obviously, with bodies like the Small Business Service. All through
the legislative process, we have been looking at the effect on
small businesses. That is why, in the strategy recognition procedure,
union recognition does not affect companies under 21. We are taking
into account the impact on small businesses right across the regulations
and using bodies like ACAS in terms of codes of practices to try
and support the work that small business is doing because I believe
that you are quite right, that is where the future lies in terms
of employment trends and we need to make sure that these companies
are flexible without losing their employees.
Q254 Lord Howie of Troon: Mr Sutcliffe,
you will be quite aware, with your trade union background, that
there is a long-time precedent for opting in and I am referring
to the opting in for the political levy which existed from the
middle 1920s to the middle 1940s. It worked perhaps in some ways
and perhaps not in others, but there is something to be said for
it and would that not apply here too?
Mr Sutcliffe: I am prepared to look at it and
speak to the federations to get the detail of what they are saying.
I am not saying "no" outright. I am just saying that,
as initial attraction, it was not attractive but we are prepared
to discuss for the reasons I have said.
Chairman: Lady Howarth, I think you have
a question about the position of other Member States and if you
could go on from that straight into the SiMAP and Jaeger
judgments because we have, as they say in the medical world, someone
here on call, namely the Minister.
Q255 Baroness Howarth of Breckland: Before
we do move on, I would be interested to know if there was anything
else in the meeting that you had that you would want to add and
what you really think the attitude of the other Member States
is likely to be in the longer term and how you see that trend
going through the Union. Particularly with large numbers of other
States trying to come on board, there might be impact and changes
in relation to that. So, when you are answering, I would be really
interested to hear about that part. My colleague is going to ask
about the details of the Health Service. It really would be useful
if you could tell us about the Government's overall policy on
these judgments, the SiMAP and Jaeger judgments,
about which we have heard a lot from many, many sources, and how
they are likely to affect other categories in the Health Service
in terms of on-call workers.
Mr Sutcliffe: In general terms, I tried to set
out the position that the European Union is looking at the Kok
report and the Lisbon targets that have been the aspirations that
everybody wants to achieve and discussions and debates about the
practical ways of achieving have been very important for me in
discussion with other Member States. What is interesting is if
you look around at what is going on in the rest of Europe with
the majority of countries already. There is a reform program taking
place in Germany. There is a whole range of reform taking place
in Germany in terms of benefits and employment rents. In France,
there is the change in the statutory 35-hour week and the French
are changing the insolvency law as well. There is a whole look
at flexibility about employment and creating jobs. I think that
the UK model, because of the level of employment we have and there
can be arguments about the quality of jobs, seems to be attractive
to the rest of Europe, particularly the accession countries. In
the discussions, I think the other Member States are starting
to warm to the things that we do within the UK. As I said earlier,
I think the Commission has some difficulty with that for historical
reasons but, in the discussions with other Member States, it is
clear—and John will talk about SiMAP and Jaeger
in relation to the Health Service—that an increasing number
of them are in favour of the retention of the opt-out and the
flexible changes that we expressed earlier. On SiMAP and
Jaeger, notwithstanding what is going on within the Health
Service, there are other sectors that will cause a problem, the
care home sector for one and other emergency services, and it
is the relationship about what is counted as on call and what
is our definition of compensatory rest periods which are the key
concerns. There are other sectors other than the Health Service,
but particularly the impact on the Health Service has been a major
focus for ourselves and Member States which is acknowledged by
the Commission in the fact that they need to and want to give
us a decision before the summer. To answer the question, the momentum
is going towards the UK's model.
Q256 Baroness Howarth of Breckland: We have
heard a lot from people who have given evidence about the ways
they are finding to get around these two judgments and we are
interested in this consensus that is developing in Europe but,
meanwhile, is there a way of UK employers protecting themselves
against litigation based on these judgments? Do you think that
litigation is likely to come forward and how far do you see a
solution?
Mr Sutcliffe: I think the solution can only
come through an amendment to the Directive which is my way forward.
As far as litigation is concerned, perhaps John will want to say
more in terms of how it affects the Health Service. There is that
potential if we do not come to a solution, certainly.
Mr Hutton: In relation to the Health Service,
I think what Gerry said is absolutely right. There is always the
risk of a legal challenge if a National Health Service trust or
a Primary Care trust is not employing people in terms that comply
with the Directive. I think that Gerry is quite right in saying
that the best way to deal with that is through amending the Directive
and the UK Government, along with many others in Europe, are pursing
that course of action. We have other things that we are obviously
doing at the moment to minimise the risk of legal challenge, including
obviously the work we are doing to discuss with the NHS methods
by which rotas at night, for example, and staffing patterns within
hospitals in particular can be made compliant with the Directive.
We are making very good progress. It is something that we overlook
as we discuss the problems in the Directive. We have been making
very good progress in reducing the number of hours that junior
doctors work every week in the NHS and, if it had not been for
the SiMAP and Jaeger rulings in these two cases,
I do not think that we would have had a problem in the NHS in
dealing with the Directive, but it is a difficulty for us. The
Directive, as you will know, is directly enforceable in the employment
tribunals and a junior doctor or any member of staff in the NHS
is free to seek guidance from the employment tribunal if they
feel their working patterns are not compliant. Obviously, I cannot
stop them doing it and it would be quite inappropriate and wrong
for me to even think about doing that, but alongside the work
that we are doing at the European Union level and the discussions
that I know are taking place at trust level to try and find compliant
rotas and so on together with appropriate use of the opt-out,
those are the ways that we can at least seek to minimise the risk
of potentially disruptive legal action because the consequences
of that really could be quite serious and we would obviously wish
to minimise that possible disruption to NHS patients.
Chairman: Lady Brigstocke, would you
like to ask your question about work/life balance which of course
does apply to doctors as to everyone else and then we will come
on in a little more detail to the situation of junior hospital
doctors and doctors in training.
Q257 Baroness Brigstocke: A lot has been
said in various discussions on the Working Time Directive that
there is hope that the whole aspect is going to be much more family
friendly. I wondered about the needs of female workers when it
comes to employment policies and of course that is probably very
pertinent to the world of doctors and nurses and indeed teachers.
Mr Sutcliffe: I personally believe that this
is the key issue for the next phase, if you like, in terms of
employment rights in the world of work. Somebody described time
as the new currency in the sense that people are very precious
about the time they spend with their families and the quality
of life issues around the use of time. I believe that the Government
are trying through legislation. There is the recent legislation
which gives the parent the right to ask for time off for difficulties
with children under six or caring responsibilities and I have
mentioned the Parents at Work awards, and trying to make the case
about flexible working and this whole issue of work/life balance
is vital to the UK. I do not think that not having the opt-out
is the cause for not having friendly or flexible working practices.
I believe that the demographic changes that are taking place means
that good employers will have to look at job retention and how
they retain their staff by offering flexible and family-friendly
policies. Within the UK, we have got more women into work. There
are 5.5 million employees in the UK who have flexible working
arrangements, there are 6.3 million part-time employees in the
UK, that is 26 per cent of all employees, and the Government recently
set up the Work/Life Balance Challenge Fund, of which there have
been 448 projects which affect 1.2 million employees and cost
the Government £10.5 million. So, I think there are lots
of indicators of how the Government see the family-friendly employment
policies. The whole equality agenda has been vital to the UK and
I do not see that taking the opt-out away will help that in any
way.
Mr Hutton: Could I just speak on that particular
point as well because, in the NHS, this is a very serious issue
for us. About 80 per cent of our staff are women. Our concerns
about SiMAP and Jaeger should not be interpreted
as being in any way a sign that we are pursuing an agenda which
is against striking the right balance between the worker and family
responsibilities. If we do not find a way to balance work and
responsibility, the work/life balance that Gerry referred to,
in the NHS, we will not be able to recruit and retain the qualified
staff that we need if the NHS is going to expand. The issues around
SiMAP and Jaeger are very, very specific and concrete
and relate to the way in which the Directive has been interpreted
by the Court. The NHS is currently in the middle of a very substantial
program of work to try and make itself a more attractive place
to work for women—and that includes men too, by the way,
who also have kids and have responsibilities towards them and
we should not say they are just for women—so there are childcare,
cre"ches and nurseries. We are looking at flexible working
times. We have a new pay and terms and conditions package within
the NHS which I think is very significantly more work/life balance
friendly which encompasses the equal pay for work and equal value
ethos fundamentally at its heart and we have had problems with
that in the NHS for many, many years. So, I think that we can
pursue a very, very constructive range of measures making the
NHS a better and more family-friendly place of work but not pretend
that SiMAP and Jaeger can be swept away. The rulings
in the European Court are something that we have to accept as
part of an agenda of family-friendly work/life balance.
Q258 Baroness Brigstocke: You cannot alter
the fact that those judgments, certainly the one about sleeping,
are going to affect women more than the men as it is very likely
that it would. What I would also like to know is whether you think
that this range of developments that you have just been talking
about might even increase recruitment of women into the NHS and
not just hoping to make it better for those who are already there.
Mr Hutton: I think it is undoubtedly true that,
if you look at the demographics/trends in medicine, it is becoming
increasingly a female workforce and that is a very, very strong
and obvious trend, not just here but around the world too, and
we will certainly have to reflect that, as I said, in our working
practices and policies. I think that SiMAP and Jaeger
really are quite distinct and specific issues and I do believe
that we can tackle those problems caused by the European Court's
judgments in a way which is sensible and strikes a fair balance
between the perfectly legitimate right of women and men to have
time with their families and have their family responsibilities
recognised but also the fundamental responsibility of Government
which is to deliver an effective healthcare service and, if we
cannot do one without the other, then we certainly would have
a problem. I think there is a sensible way to do that and maybe
we can discuss those issues about how we resolve SiMAP and
Jaeger at some point later on this afternoon.
Chairman: We can come back to SiMAP
and Jaeger in a little more detail.
Q259 Lord Colwyn: We are going to move on
to junior hospital doctors and I am just wondering whether in
fact you would like to add a little more on SiMAP and Jaeger
because, as I think you said, it is a significant challenge. Did
I hear you say earlier that you thought there would be a solution
before the summer, which is my first question? The BMA tell us
that they think that SiMAP is a desirable way that we should go
but the Jaeger judgment is really going to be absolutely impossible;
would you agree with that?
Mr Hutton: I think Gerry might well want to
talk about the issue about the solutions to SiMAP and Jaeger
and then I will come back.
Mr Sutcliffe: When I said that there was a solution,
what I meant was that there will be an announcement from the Commission
about how strongly they feel that Member States have related their
concerns about SiMAP and Jaeger. I am not too sure
whether we will get to an actual solution because there is a process
and it may be a legislative solution, if they do get to that,
which would then take us later on in the year in terms of
legislation. What is helpful is the acknowledgement of the concerns
of Member States about the severity of the problem. So, it is
heartening to hear the Commission accept and acknowledge that,
if there were a problem, they would have to give a view on it.
Mr Hutton: In relation to the BMA's position
on SiMAP, we do disagree with it. We do not think it is a sensible
interpretation of the Directive and it was certainly not within
the intentions of the UK Government when we signed up for the
Directive that time spent asleep would somehow magically count
as time spent at work. I wish I had a job like that, or maybe
I do! I do not think it is a sensible way to run a Health Service.
I do not think it is a sensible ruling to apply to any sector
of industry, to be honest. What I do think the BMA are right about—and
let me be quite clear about this and I think, in a sense, this
is the issue for us—is that, if we could just park on one
side SiMAP and Jaeger, I think it is perfectly sensible
for the NHS to be looking at ways of minimising resident on-call
rotas in the NHS now. It is a sensible thing for us to do because
I think that we ought to be prepared to challenge traditional
ways of working if they are wasteful, inefficient and unnecessary.
That is one of the things that I am very encouraged about that
is emerging from the Hospital at Night Project and we may want
to talk about that in a minute. I think there is actually a very
strong case for looking at how we traditionally staff our hospitals
at night with a view to making more efficient and better use of
doctors' time. In the NHS as a whole, there are a number of examples
and I am sure that members of your Committee would have had experiences
yourselves where things are being done by doctors which actually
do not need to be done by doctors and can be done other members
of staff if they are properly trained. I think therefore we should
be going down this road with respect to SiMAP and Jaeger
and I think that is how I would approach that problem. We can
argue the legal niceties of the European Court of Justice's decision
but I do not really want to do that because I am not really qualified
to do that, but I agree that I do not think anyone looking at
the broad issue could come to a view that that was the only sensible
way in which to interpret the definition of working time. I think
that Jaeger is a very different case and I am glad to say that
the BMA are at one with us on that. To require compensatory rest
to be taken immediately would potentially have a massively
destructive effect across the NHS and might mean that doctors
could not work the following shift or rota that they were required
to do and that would have knock-on consequences right across the
hospital. At the end of the day, the only people who would be
negatively affected would be the patients and that is a ridiculous
result. I do believe—and Gerry has talked about some of
those issues—that we can resolve that in a very sensible
way which does not drive a coach and horses through the fundamentals
of the Directive which is to provide proper protection for employees
against working practices that are unsafe and unsound and doing,
as I have said earlier, our fundamental job which is to keep running
a health service in an effective and efficient way. On SiMAP,
we do not take the view of the BMA and I think it would be true
to say that probably the majority of the European Union Member
States do as well and I am glad about that. On Jaeger, I think
there is pretty much a universal sense that it would have a necessarily
disruptive effect on most of the healthcare systems in Europe
and could not be supported for that reason.
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