`(1) In this section the relevant enactments are the provisions of the Hours of Employment (Conventions) Act 1936, the Mines and Quarries Act 1954, the Baking Industry (Hours of Work) Act 1954 and the Factories Act 1961, which are mentioned in sections 3 and 4 above and in Part II of the Schedule to this Act, and any subordinate legislation made under or by reference to those provisions (in this Act called "protected conditions").
(2) Schedule (Rights of established workers covered by protected conditions) to this Act shall have effect for the purpose of giving certain rights concerning workers covered by the protected conditions so employed at the commencement of this Act.'.—[Mr. Evans.]
§ Brought up, and read the First time.1216 6.30 pm
§ Mr. Speaker
With this it will be convenient to take the new schedule—Rights of established workers covered by protected conditions—
§ Right not to be dismissed
1. Subject to paragraph 3 below, the dismissal of an employee who is employed on the day before the commencement date shall be regarded as unfair for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act") if the reason for the dismissal (or if more than one, the principle reason) is that he has refused to do work that was previously subject to a protected condition.
Right not to have action short of dismissal taken
2. Subject to paragraph 3 below, every employee who is employed on the day before the commencement date shall have the right not to have action (short of dismissal) taken against him by his employer for the purpose of compelling him to do or agree to do, or penalising him for refusing to do work that was previously subject to a protected condition.
Exclusion for contractual exemptions from protected conditions
3. Paragraphs 1 and 2 above do not apply where the work in question is work which at the time of dismissal or, as the case may be, of the taking of the action the employee was obliged to do that was originally subject to a protected condition by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date.
Modifications of 1978 Act in paragraph 1 cases
4. Section 54 of the 1978 Act (right not to be unfairly dismissed) shall apply to a dismissal regarded as unfair by virtue of paragraph l above regardless of the period for which the employee has been employed and of his age; and accordingly sections 64(1) and 64A(1) of that Act (which disapply the right not to be unfairly dismissed in cases where the employee has not been continuously employed for qualifying periods or has attained retiring age) shall not apply to such a dismissal.
5. — (1) Where in the case of a dismissal regarded as unfair by virtue of paragraph 1 above an additional award falls to be made under section 71(2)(b) of the 1978 Act (compensation where employee not re-enstated or reingaged in accordance with an order for reinstatement or re-engagement following unfair dismissal), the amount shall be not less than 26 and not more than 52 weeks pay.
(2) For the purposes of this paragraph the amount of a week's pay shall be calculated in accordance with Schedule 14 to the 1978 Act.
6. Subsection (3) of section 57 of the 1978 Act (determination of question whether dismissal fair or unfair) shall have effect subject to paragraph 1 above.
Application of 1978 Act provisions in paragraph 2 cases
7. — (1) Sections 24 to 26 and 133 of the 1978 Act (complaint to the industrial tribunal, compensation and conciliation officers) shall apply in relation to paragraph 2 above as they apply in relation to section 23 of the Act.
(2) The following provisions of the 1978 Act, namely—
section 129 (remedy for infringement of certain rights),
section 132 (recoupment of unemployment benefit and supplementary benefit),
section 136 (appeals), and
Part IX (miscellaneous and supplementary provisions), shall apply as if paragraph 2 above were contained in Part II of that Act.
Meaning of "protected worker"
8. — (1) Where on the day before are commencement date a protected worker's relations with his employer have ceased to be governed by a contract of employment, he shall nevertheless be regarded for the purposes of paragraphs 1 and 2 above as having been employed as a protected worker on that day if that day falls in a week which counts as a period
of employment with that employer under paragraph 9 or 10 of Schedule 13 to the 1978 Act (absence from work because of sickness, pregnancy, etc.).
(2) Where section 56 of the 1978 Act (failure to permit women to return to work after confinement treated as dismissal) applies to an employee who was employed under protected conditions under her original contract of employment she shall be treated for the purposes of this Schedule as if she had been employed as a protected worker on the date on which she is treated as dismissed under that section.
9. In this Schedule—
action", "contract of employment", "employee", "employer", "employment" and "original contract of employment" have the meanings given in section 153(1) of the 1978 Act;
commencement date" means the date on which the Act is passed;
dismissal" has the same meaning as in the 1978 Act; "the 1978 Act" means the Employment Protection (Consolidation) Act 1978.
§ Mr. Evans
It would be remiss of me if I did not offer a comment on the result of the vote that has just been announced. I can only assume that there have been substantial abstentions on the Government Benches. Apparently many of the Government's troops are missing for one reason or another. I can only hope that they are missing as a result of the force and power of the arguments put forward by myself and my hon. Friends. These arguments must have persuaded many Government Back-Bench Members to abstain on this important issue.
I would go further and take this opportunity to suggest that those Conservative Members who abstained in the previous vote should go a little further than that on the vote on new clause 2. I suggest that they should vote with the Opposition and we will carry the day.
Although the previous new clause was important, new clause 2 is even more important in relation to workers' rights. New clause 2 will make it illegal for a worker to be dismissed for refusing to work any periods previously forbidden under the legislation which is repealed by the Bill. Although it could be said that the previous new clause dealt with more academic issues such as giving workers the right to have a vote on changes in their terms and conditions of employment, new clause 2 is even more fundamental. It will extend protections to workers if they refuse to work the new hours which an employer might impose upon them.
New clause 2 and the new schedule follow on from old clause 7, which was inserted in the Bill in another place with all-party support. Sadly, clause 7 was removed by the Government in Committee. The gist of the new clause and the old clause is similar. The new schedule would tighten some of the drafting criticisms made by the Government about my noble Friend Lord McCarthy's clause 7. It is interesting to note that the Government always criticize the drafting of Opposition amendments which prove to be difficult. The Government know as well as I do that it is not the drafting which is the issue but the principle of the amendment. In this case, I hope that the Minister will spare us any criticisms about the Opposition's lack of ability in drafting the schedule and will concentrate upon the principle involved.
What we are trying to do can best be understood by a brief examination of the paragraphs in the new schedule. Paragraphs 1 and 2 make it unlawful to take any action, 1218 including dismissal, against any employee who refuses to do work that, before the passing of the Bill, would not have been allowed. For instance, women in factories will not be dismissed because they refuse to work for more than 48 hours a week or nine hours a day — one would assume that a Government would be anxious to maintain such a provision—or outside the hours of 7 am and 8 pm. They will not have to work for more than four and a half hours without a break. Again, that is a civilised provision that one would assume that the Minister would be only too happy to accept. Such criteria are similar to those in the Mines and Quarries Act and the Factories Act. These unfair dismissal procedures will also apply to men working in the baking industry.
It is worth putting on record again what my hon. Friend the Member for Stretford (Mr. Lloyd) said about the hours being worked in the baking industry. He talked in terms of 72-hour weeks and 12-day shifts. It is a legitimate fear of the men and women who work in the baking industry that once the protective legislation is repealed they will go back to the situation of 1954, before the passage of the Act, when they were at the mercy of ruthless competition, working awful hours in awful conditions. I suspect that they will be proved right. However, if, before the passage of the Bill, workers have agreed to work outside the prohibited hours, the clause and schedule will not apply. That is the effect of paragraph 3 Paragraph 4 dispenses with the usual criteria for qualification periods for unfair dismissal claims. Paragraphs 5 to 9 relate to other technicalities, compensation, and so on.
If any Tory Back Benchers, or even the Minister, have taken the trouble to read the new clause and schedule, they may have realised that there are certain parallels with a clause and schedule in the ill-fated Shops Bill. It is worth recalling that the infamous Shops Bill was defeated by people coming together from all parts of the House in voting down unnecessary and ill-considered legislation. I hope that all those Tory Back Benchers who abstained in the vote on new clause I will join us in the Lobby, particularly after I have drawn to their attention the fact that this clause and schedule are similar to those in the Shops Bill.
Apart from several certain technical alterations, the two clauses in the two schedules are virtually identical, and this is intentional. The schedule was introduced in the Shops Bill by the Government in the other place. Our contention is that the parallels between those working in shops and those affected by the Bill, and the effects of both Bills, are such that there should be no reason for the Government to oppose our new clause and schedule. I do not expect the Government to object to our proposition on spurious drafting grounds.
In Committee, Ministers constantly stated that the previous clause 7 would cause great difficulties for employers because they would have to cope with a two-tier work force—that is, those who were employed before the Bill became law and those who started work afterwards. However, the Government saw no problems with a two-tier work force in shops. The Minister in the other place, the noble Lord Glenarthur, said on the Shops Bill:The reason why the Bill distinguishes between existing and future shopworkers is clear and straightforward. It will radically alter the position of existing shopworkers, many of 1219 whom may have been attracted to shopwork in the first instance because they would not have to work on a Sunday. I can well understand the concern of existing shopworkers, and our proposals recognise their special position. But I do not believe that a similar consideration applies to new recruits". — [Official Report, House of Lords, 21 January 1986; Vol. 471, c. 223.]The Government were content with a two-tier system as a result of the Shops Bill.
The noble Lord Glenarthur was to renounce the sacred Tory doctrine on opposing protected conditions on three more occasions during the passage of the Shops Bill through the other place. Worse was to come a few weeks later when he announced a small concession to extend such rights to existing shopworkers who subsequently changed employers. In other words, workers who would have retained their rights and positions in a particular shop would have maintained those rights if they changed employers. This was done in response to a remark in Committee by Lord Wolfson who warned that failure to extend the rightcould well lead to resentment and would not be helpful to good human relations in the trade.Possibly more critical was his comment:It could also have the effect, which is not intended, of prohibiting occupational change."—[Official Report, House of Lords, 11 February 1986; Vol. 471, c.177.]The Government saw no parallels with the Sex Discrimination Bill. The problems of a two-tier work force were suddenly of paramount importance. The right not to be unfairly dismissed, so important in shops, was now an "outdated and outmoded restriction". That was what Lord Trefgarne said on 11 March. The Parliamentary Under-Secretary omitted to mention that one way to cope with a two-tier work force was to talk to and negotiate with it. He was not aware that there are already many two-tier work forces. Perhaps most importantly, he never mentioned that in almost all instances, after the Sex Discrimination Bill becomes law, there will be a two-tier work force. This will be because of the restrictions to which women are subjected, which will also cover young people. However, for the moment, as the Minister confirmed in his comments about section 114 of the Factories Act, yound people are still protected, and that will continue under the scope of the relevant sections of the Mines and Quarries Acts as well as the Factories Acts. In any case, when arguing about old clause 7, the then Parliamentary Secretary claimed that parallels with Sunday trading were not correct. Sunday working had never been a relevant prospect for women, whereas shift work had always been a prospect, with the possibility of a health and safety exemption. There is some truth in that, but it omits the fact that the work force had the chance of either protesting against prohibited work and/or bargaining for better conditions against an exemption order.
In 1984–85 the factory inspectorate granted more than 4,000 special exemption orders, covering 200,000 women, 80,000 of which were relevant to night work. An exemption order is hardly ever refused. This begs the question: why are we abolishing the process? When the Auld committee recommended in its report on Sunday trading the deregulation of shops, it also stated that this should occur within the framework of continued wages councils protection. As it said in paragraph 288: 1220We also urge that there should be proper enforcement of the Wages Council Orders, by an adequately staffed Wages Council Inspectorate.In fact, the number of inspectors has decreased by one third since the Government came to office. The Wages Bill will reduce the total staff from 223 to 145, of whom only half are inspectors. This is directly relevant to the Sex Discrimination Bill as the wages inspectorate covers the baking industry. The Baking Industry (Hours of Work) Act 1954 is to be repealed and in the not too distant future we will see the net result of that. Has the Minister a date in mind for repeal of that Act?
There was quite a campaign throughout Britain by supporters and opponents of the Shops Bill. By February 1986 the Prime Minister had received 100 replies in favour of the Shops Bill and some 34,000 against. The parallels between the two Bills are obvious. Some 63 per cent. of shopworkers are women and the Sex Discrimination Bill affects women most directly. Opposition to the Shops Bill was divided between the effect of such legislation on society and its implications for the work force. Both effects apply equally to the current Bill.
Even in their particulars the Bills show similarities.Shopworkers could not work for more than five hours without a 20-minute break. For factory workers the limit is four and a half hours and they must have a break of half an hour. The arguments about similiarity are thus reduced to the degree of effect of repeal. However, the essence is the same. A previous Parliamentary Secretary said in Committee that the Government did not expect the Sex Discrimination Bill,to prompt radical changes in hours immediately.He also said:There is no evidence to suggest that the removal of restrictions on women's hours of work will result in employers imposing radical changes in working patterns, forcing women to work at night or work unsocial hours against their will." —[Official Report, Standing Committee A, 26 June 1986; C. 93, 160.]That begs the question: why go to so much trouble to repeal the relevant legislation? If employers will not take advantage of it, why are we wasting parliamentary time? There is evidence to support the belief that employers have been awaiting such a repeal. In recent years there has been a considerable increase in night hours being worked.
§ Mrs. Kellett-Bowman
In column 160 the Minister also said:as the legislation stands, employers may obtain exemptions from the Health and Safety Executive allowing women to work otherwise prohibited hours and many employers take advantage of the opportunity".—[Official Report, Standing Committee A, 26 June 1986; c. 160.]The hon. Member for St. Helens, North (Mr. Evans) shares my interest in the welfare of women. The career prospects of women are opening out in fields such as engineering and it would be a pity if we were to put a stumbling block in the way of their employment or promotion in such occupations.
§ Mr. Evans
I take the point made by the hon. Member for Lancaster (Mrs. Kellett-Bowman) and I appreciate her concern for the welfare of women. She has expressed such concern on a number of occasions. The class of women that she is talking about will not be strongly affected by this legislation. I agree that progress in the fields she mentions has been slow and not good enough, but the women referred to by the hon. Lady are not restricted by the terms of this Bill. Unfortunately, we are talking about 1221 women who are doing the most menial of tasks and not about women who are moving into engineering and other such industries.
§ Mr. Tony Lloyd
The hon. Member for Lancaster (Mrs. Kellett-Bowman) raised a point with which we all sympathise, the need to encourage more women to enter industries such as engineering. The general context is recognised, but we are talking largely about new employment and about how to encourage new people into those industries. This clause would apply only to people already in the industry and would not cover new recruits to engineering.
§ Mr. Evans
My hon. Friend the Member for Stretford (Mr. Lloyd) is right. We are talking about employees who are currently employed in areas where the Bill will repeal the protections that they enjoy. With the greatest respect, I suggest to the hon. Member for Lancaster that her fears are misplaced. I hope that she will support the new clause.
The Government do not seem to be sure of the effect of repeal. We are told on the one hand that the repeal of protective legislation will have little effect. On the other hand, we are told that it is a tremendous burden on employers who are clamouring for its removal. Government Ministers frequently tell us that. The Government's bottom line is that the repeal of such legislation will increase the number of jobs. That has been said most recently in the 1986 White Paper "Building Businesses…Not Barriers". On page 35, paragraph 7.1, it says in relation to health and safety and employment protection:This legislation taken as a whole undoubtedly imposes significant costs on employers, and there is evidence that it has acted to reduce employment e.g. by discouraging some employers from recruiting.We have not seen any evidence to justify that statement. Undoubtedly, it is true that in areas where there is health and safety protection legislation that is bound to impose costs upon the employers. The implication that could be taken from the paragraph is that to benefit employers we should reduce the health and safety protections offered to employees.
In March 1985 the then Secretary of State for Employment, the right hon. Member for Bridgwater (Mr. King), introduced measures to take away the unfair dismissal protections from some 3.5 million workers. He said the action was justified because of the costs imposed on employers as a result of their involvement with tribunals in unfair dismissal cases. Such simplistic equations have been cited throughout the passage of the Bill. The major evidence seems to come from the United States of America and it is asserted that as it happened there it could happen here. I do not believe it happened there and I certainly do not think it will happen here without gravely affecting the workers concerned. A study undertaken by the Department of Management Studies for the Department of Employment gives the lie to that belief. The report of the study is entitled "Unfair dismissal Law and Employment Practice in the 1980s". It aimed to show whether employment protection practices introduced by the Government in 1979–80 and which related mainly to unfair dismissal and small employers had any impact on employment policies and practice.
Of the 81 companies surveyed, 65 per cent. employed 50 or fewer people and of those 35 per cent. employed 20 1222 or fewer. That is the very type of business that the Government say is being hindered by such protective legislation. Only 4 per cent., 7 per cent. of the smallest firms, saw unfair dismissal claims as a barrier to recruitment. Only 8 per cent. mentioned unfair dismissal at all. The only relevant areas were in terms of casual and limited term work. No firm had altered its probationary period because the Government had extended the qualifying period for unfair dismissal, and only 5 per cent. of the firms had probationary periods as long as one year.
Some 68 per cent. of the firms had adopted disciplinary procedures in the mid-1970s as a response to legislation and the ACAS code of practice. Some 72 per cent. gave complying with the law and avoiding possible unfair dismissal claims as the main reasons for adopting disciplinary procedures. While 25 per cent. of larger firms quoted unfair dismissal law as a reason for reluctance to dismiss workers, just 7 per cent. of small employers did so. The study confirmed the findings of Daniel and Millward's "Workplace Industrial Relations in Britain 1983" and showed:There was very little sign…that employment protection legislation was inhibiting industrial recovery or contributing to the high level of unemployment by discouraging employers from taking on new employees.Thus, a study undertaken for the Government has shown that not only has employment protection legislation not hindered expansion, but that it has kept employment figures higher than they might otherwise be. It focused on the Government's favoured small business sector.
The Government are eager to point out that they are following Equal Opportunities Commission's recommendations in repealing employment protection legislation for women, yet there were two dissenting voices in the EOC team that drew up the report. However, even its advocates believed thatIt is necessary to ensure that those who may have their hours of work altered significantly so that they cannot stay in their employment are legally protected. Clearly this may well arise for women on the repeal or relaxation of the present legislation. Generally it will arise for workers (mainly women at the moment) with dependants. We consider that provision in this area is essential and we recommend the introduction of a code of practice on hours of work, and specific legal provision for women in employment now who would be seriously affected by a change in the legislation.The Government have paid no attention to this part of the EOC's recommendations. In the other place, the former clause 8 was added in Committee. That excellent clause, which introduced a code of practice, was removed by the Government. Furthermore, the former clause 7 covered the legislative requirements.
In its briefing on the Sex Discrimination Bill the Equal Opportunities Commission stated that these two clausesgive effect to the Commission's overall view in a way that a simple repeal of the existing protective provisions failed to do.I do not need to remind the House that the Government established the Equal Opportunities Commission to comment on and try to improve employment protection for women, yet when important recommendations are made by the EOC the Government choose to ignore them.
The Government removed both of those clauses in Committee. Our new clause 2 attempts to put the substance of the EOC's recommendations back into the Bill. However, the remedies contained in new clause 2 will be limited in effect. Only 5 per cent. of successful 1223 applications in unfair dismissal cases result in reinstatement. There is no legal aid for employees who appear before tribunals, although employers are invariably legally represented. Further, the Government have announced that they intend to charge employees £25 even to go before a tribunal. That will be refunded only if an employee wins his case.
I ask the Minister to look again at the imposition of a £25 charge before anybody can appear before an industrial tribunal. I thought that the Secretary of State and the Paymaster General did not want to create a situation in which people would not he prepared to go before a tribunal simply because they dared not risk losing £25. That would be disgraceful in 1986 and the Ministers responsible for the suggestion should be ashamed of themselves. Therefore, I ask the Minister to consider again the imposition of a £25 charge. I suspect that it is another attack on the poorest and lowest paid workers. They will be denied the right to seek protection before an industrial tribunal. People will be deterred from taking their cases before an industrial tribunal.
As it stands at the moment, the law might allow people to be unfairly dismissed for refusing to work in what formerly were prohibited conditions. However, it is subject to the reasonableness of the case and to an assortment of qualifying criteria.
That leads to the question of poorly paid people being prepared to risk £25. New clause 2 would make dismissal for such a refusal automatically unfair, regardless of the length of time that had been worked.
The Government may say that the opposition to industrial tribunals in "Building Businesses…Not Barriers" can be used to justify the £25 charge. Even if the Minister is unable to answer tonight, I hope that he will look again at this question and, if necessary, make representations to his right hon. Friends, one of whom, the Paymaster General and Minister for Employment, is sitting next to him, He will, I hope, have heard what I have said.
According to page 36 of "Building Businesses…Not Barriers", most of the problems encountered by employers over employment protection legislation relate to the cost and management effort required to deal with ill-founded claims to industrial tribunals, which also result in considerable public expenditure, although they may cost the applicant little or nothing. The Government do not appear to have allowed this to worry them, since they have taken Central Arbitration Committee jurisdiction away from collective agreements. By their own admission, this places greater emphasis upon industrial tribunal hearings as the main means of redress.
I believe that I have made a reasonable case for the protection of workers, many of whom are in the lowest paid industries. The protection that has been afforded to them by Parliament over a number of years is to be swept away by this legislation that masquerades under the title of Sex Discrimination. I urge the Minister to consider what I have said. I hope that he will be prepared to accept the proposition that workers should be entitled to protection. If not, I shall have to ask my right hon. and hon. Friends to support me in the Lobby and to vote for new clause 2.
§ Mr. Hoyle
Although a reasonable case has been put before the Minister, I am afraid that he has disappointed us. His mind seems to work in the same way as that of previous Ministers, and it resulted in a number of 1224 abstentions. The Government were nearly defeated because of the weakness of the Minister's reply and because of his lack of flexibility. I am always prepared to forgive sinners and there may be a chance for the Minister to think again.
This is a reasonable clause. It should be illegal for any worker to be dismissed for refusing to work during any of the periods when he does not need to work because of the protection afforded to him by the previous legislation. Women should not be dismissed because they refuse to work more than 48 hours a week. Indeed, nobody should have to work for more than 48 hours a week, or for more than nine hours a day. Where are we coming to if we ask anybody to work for more than nine hours a day?
However, women will have to work for 48 hours a week if this protection is removed from them. Furthermore, they will have to work before 7 am and after 8 pm, and they will also have to work for more than four and a half hours without a break. I am sure that the Minister would not want to have to work for more than four and a half hours without a break. Indeed, accountants have never been known to work for more than four and a half hours, although accountancy is a very lucrative profession. The protection that is afforded is very bad indeed, and it has to be coupled with low pay.
The Government should not worsen the working conditions of the low paid. They must be protected by legislation against unfair dismissal if they refuse to accept any worsening of their working conditions.
We do not want to hear the argument that has been advanced in previous debates that this would lead to two-tier employment and bureaucracy and that it would be very difficult to enforce. The Minister is nodding his head. His notes have been prepared for him, unfortunately, by the same civil servant who prepared the notes for his predecessor. The Minister is known to be a man of originality and to have original thoughts. I ask him not to accept the brief that was given to his predecessor by his civil servant. I ask him to look again at this question and to try to be flexible. Why should the conditions of these people be made any worse?
My hon. Friend the Member for St. Helens, North (Mr. Evans) said that when the Shops Bill was discussed the Government would have been quite pleased to introduce two-tier conditions of employment for those already in employment, whose conditions would have been made worse by having to work on Sundays, and for those who were new entrants to the industry.
Some of the worst-paid people in the country already work long hours. They need to be protected against working 48 hours a week or nine hours a day. Such protection is reasonable. I hope that the Minister will think again about this.
I hope that the Minister does not say that there is bureaucratic pressure and that the legislation would be difficult to administer. We have already given the parallel with the Shops Bill so that that overcomes that argument. I also hope that he does not argue about the cost to employers and about the fact that it would mean people going to industrial tribunals. I heard him use such arguments before he became a Member of the House, but they did not ring true then and they do not ring true today. I want the Minister to look at the other side of the coin —the protection of the employee. I know that the hon. Member for Lancaster (Mrs. Kellett-Bowman) has a great 1225 interest in women's affairs and I am sure that she would not want to see women's hours and conditions worsen. I hope that she will join us in the Lobby.
§ Mr. Hoyle
I know that the hon. Lady has done it before and that is why I know that my comments will not fall on stony ground. I know that the hon. Lady is open to conversion. There is not much hope of the Minister joining us. We are really talking about the protection of some of the lowest paid employees in some of the worst conditions.
Whatever the Minister does, I hope that he will reconsider the £25 payment which will be necessary before a person can go to an industrial tribunal. We are talking about very low-paid employees who are often the only breadwinner in a family and they could not afford £25. I am sure that for the Minister and his colleagues £25 is nothing.
§ Mr. Mikardo
We are not only talking about £25. A person will have to take a day off work and lose a day's pay. In some parts of the country, people may have to travel considerable distances and pay fares.
§ Mr. Hoyle
That is a good point. If the Minister cannot give us a decision tonight, I hope that he will at least promise that he will look at the imposition of the £25 payment.
I hope that the Minister will take on board this reasonable new clause and the new schedule, that he will say that there must be protection for those in industry against worsening conditions and that he will consider the introduction of the £25 payment for those who want to go to an industrial tribunal.
§ Mr. Tony Lloyd
My hon. Friend the Member for Warrington, North (Mr. Hoyle) rightly drew attention to the inconsistencies of the Government's approach in this area. They tell us that the existing legislation is a major burden on industry and yet its removal will have no effect on those at the place of work. Gerry Dowds of the Forum of Private Business commented on the Government's proposals. He is a representative of the small business sector, the sector which the Government claim is most affected by the present legislation. He said:I've not met one small business man who has had one good thing to say about dismantling the employment protection. We do not want second-class employees and second-class customers".That is the voice of the small business sector. It does not want to see the present legislative protection swept away and it does not want to face competition from the cowboy employers who will drive down conditions in the industry. That is why, even if we cannot maintain present employment protection, which is what some of my hon. Friends would want, we at least want to offer that protection to those who have already started their career and who follow their working lives on the basis of those protections.
I recently visited a factory in my constituency. It was a print works which had just switched to two-shift working. Most of the women in the work force who had traditionally worked days are happy with their conditions. They said that they were concerned when the management 1226 first asked them to consider a change but, having done it, they were happy. Nobody on the Labour Benches would want to deny them their right to work for a higher income. All of that is allowable under the present employment legislation. However, there were one or two women—this was acknowledged by the women in the factory—who had had great difficulties and who had had to make extraordinary arrangements for their families. They had eventually fallen into line for the good of everybody else. Clearly there are circumstances in which individuals would be penalised by a change in employment conditions.
It is often the woman who bears the biggest burden in rearing children. Certainly, among my friends and acquaintances it is often the woman who is responsible for collecting children from school. That may be something that should change. However, that is the position today. Therefore, working conditions for many women in the area in which I live have to relate to the family practices and activities that they are used to. It is no good saying that in the best of worlds things would be different. Of course they would. However, we do not live in a world in which we can guarantee employment for all those who want it. In the Greater Manchester area, many women are the sole breadwinner and are forced into low-paid work and into conditions where working practices make life difficult for them. If we take away the present protections that legislation provides, we enforce potentially worse working conditions for those whose lifestyle cannot easily be changed. However, they will have to accommodate those conditions at the cost of the children and their family life. That is what the Opposition are trying to prevent.
My hon. Friend the Member for St. Helens, North (Mr. Evans) made it clear that the new schedule and clause draw heavily from what the Government proposed in order to buy off their own Back Benchers in terms of the Sunday trading legislation. The Government have already sanctioned certain things as being acceptable and workable employment proposals even though they would create a differential between existing employees and future employees. As every hon. Member knows, almost every employer up and down the country already operates a two-tier working system. Very few manufacturing industries operate the same working conditions for clerical grades as they do for shop floor grades. That is a matter for industrial history. There is no great difficulty in operating the two-tier system that we have heard is such a great disadvantage.
We were told in Committee that the differences between Sunday trading and the proposals in this Bill were fundamental because Sunday work was massively different. However, the thrust of the Government's proposals on Sunday trading was that work on a Sunday was to be treated as the norm. There are Opposition Members who think differently from that and who feel that we should build in protections. Nevertheless, we also recognise that there should be protection for those people who historically have not had to operate by working shifts and working under difficult terms of employment.
This is not a major dismantling of what the Government propose. My hon. Friends and I view it as a second-best to kicking out most of the contentious sections of the Bill. It is a modest reform which will limit the damage caused by the Bill because it does not offer even the minimum protection for people in work.
The £25 proposal will hit in particular areas such as that which I represent where the employed are paid low wages. 1227 The proposal will restrict access to industrial tribunals and create a two-tier society which we want to avoid. People who are rich can afford to use the law but others cannot. The poor are already denied access to the courts unless they can obtain legal aid. If we impose an extra burden, poor people will be denied access to industrial tribunals, which should be open to those who need them, not just to those who can afford them.
§ Mr. Lee
The proposal to require a deposit of £25 to bring an industrial tribunal case is in a recent White Paper, "Building Businesses…Not Barriers". I emphasise that it is only a proposal at this stage and it is not affected by the Bill.
I am glad to say that my right hon. and learned Friend the Paymaster General, who is almost as broad-minded as I am, is with us this evening. He and I have taken on board all the points that have been made by the Opposition. As the Opposition have explained, these amendments will establish new rights for those employees who stand to be affected by the repeals in clauses 7 and 8 of the Bill.
I emphasise that these rights would apply to protected workers however short the period of their employment, whether or not they have reached normal retirement age and however few hours they work each week. These provisions therefore go far beyond the normal protection against unfair dismissal afforded employees by current legislation.
Furthermore, protected workers can carry their rights with them if they change employers, even if they move out of and then back into work which is subject to protected conditions.
It should also be noted that these amendments provide for commencement of the new rights at Royal Assent—not on the dates when the repeal of provisions in clauses 7 and 8 come into operation.
Effectively, the amendments seek to reinstate the provisions of the clause dealing with the protection of existing conditions which was inserted in another place and removed in Standing Committee—although they go in certain respects rather further and are accordingly even less welcome to the Government. The arguments deployed against that clause apply with even greater force in consideration of the amendments.
Fundamentally, we arc opposed to the amendments because in our view the provisions are unnecessary and will certainly have grave and significant drawbacks in their effects on employers. We are not talking only about the two-tier work force as between clerical and shop floor workers, as the hon. Member for Stretford (Mr. Lloyd) described it. Employers would have a two-tier work force: those who, in effect, retain the restrictions on hours because they have these new rights and those who do not because they have agreed to specific changes or because they are new recruits who, at the date of the Bill's Royal Assent, were not in jobs subject to the schedule's protected conditions elsewhere. This would significantly decrease an employer's flexibility of operation, increase his administrative costs and impair overall efficiency.
The amendments would effectively mean the retention for protected employees of the whole mass of complex and detailed current restrictions, none of which is particularly suited to today's conditions, and they would continue to operate for many years to come, until the last of the current generation of workers had left the labour market for good — in perhaps 50 years' time. It needs little 1228 enough imagination to guess the chaos, confusion and uncertainty for employers and employees in deciding which of the multitude of restrictions governing hours and overtime, meal breaks, starting and finishing times, shifts and night work apply to whom and exactly how.
§ Mr. Hoyle
Will the Minister please explain why he thinks that nonsense is suggested when the Government were prepared to introduce such a proposal in the Shops Bill?
§ Mr. Mikardo
As the House knows, I am not a Christian, but many of my constituents are. Judging by my correspondence some of them are very devout, one might almost describe them as fundamentalist Christians. If a woman constituent were required as a result of the Bill to work on a Sunday and she said, "I shall not work on a Sunday because my faith does not allow it," and she was fired, should that be regarded as a fair dismissal?
§ Mr. Lee
I should like notice of that question. I should not like to answer it at the Dispatch Box at present.
The current legislation permits exceptions and relaxations in certain circumstances, but it would not be possible for an employer to get an exemption from these new rights. So in future he would find himself less able to cope with changes than he was before this Bill's introduction. The restrictions would have become well-nigh immutable. Surely this cannot be the direction we want to take when it is vital that the prevailing climate should he as favourable towards enterprise as we can make it?
After Royal Assent, but before implementation of the repeals, employers would have the worst of both worlds, since this clause would come into effect immediately. As we do not intend to repeal the provisions affecting women's nightworking before early 1988, this would significantly compound the difficulties of this clause for employers.
What is more, the provisions of this clause are likely to be counter-productive for those supposedly benefiting. The transferability of the rights from employer to employer may make the employment of those wishing to exercise the right much less attractive than the recruitment of entirely new blood or those willing to accept changes. Protected employees may find that the so-called protection is in fact more a liability. We have not exaggerated the problems of the two-tier work force as the Opposition have argued during the course of this and earlier debates.
The Opposition believe that employees will face difficulties once the restrictions on hours are lifted. But there are already safeguards to the existing employee whose employer capriciously changes working hours. In these circumstances, a woman working in a factory required for the first time to work new hours which are at present prohibited could under present employment protection legislation make a complaint of unfair dismissal to an industrial tribunal if dismissed for refusal to work these hours providing she had the necessary qualifying period. Similarly, she would be able to make a claim of constructive unfair dismissal if she felt forced to terminate 1229 her employment because the employer sought to change her terms and conditions of employment by making her work hours which proved difficult or impossible for her. It would of course be for the industrial tribunal to judge the arguments in the case.
We cannot accept that it would be practicable or sensible to give the further and special protection provided by this clause to the 1.5 million or so currently restricted by the legislation that we are repealing. The repeals will simply put them on a par with the remaining 20 million or so employees in the work force.
To sum up, we see no need or justification for the amendments. The burdens that they would undoubtedly impose would run entirely counter to our aim of encouraging business to thrive and prosper and would ultimately undermine the interests of those whom, according to its advocates, this clause is aimed particularly to protect. Despite the fears expressed by the proponents of these amendments, there is no evidence of exploitation of the 7.5 million women working in other sectors where there are no restrictions on hours. Women, whatever their occupation, should have the same right to work hours that best suit them and their employers. There is no justification for treating one sector differently from another.
For all these reasons, I strongly press the House to reject the new clause.
§ Mr. Evans
That was another disappointing reply to a disgraceful debate. Once again, apart from the reply by the Parliamentary Under-Secretary, there has been silence from the Tory Benches, as is always the case when we discuss such issues. I have no doubt that, when we consider the Financial Services Bill next week, the Government Benches will be packed as Government Members come in here to defend and promote their financial interests in the City of London. We know where the interests of the Tory party lie. That has been proved by the fact that in this debate, once again, we had a disappointing reply from the Parliamentary Under-Secretary. Next week Tory Members will defend their interests in the City of London, whereas tonight they are treating the poorest paid workers in the land with complete indifference.
I welcome the fact—I am sure that people outside the House will welcome it—that the hon. Gentleman and his right hon. and learned Friend the Paymaster General and Minister for Employment have taken notice of what my hon. Friends the Members for Stretford (Mr. Lloyd) and Warrington, North (Mr. Hoyle) have said about an employee having to pay £25 to appear before an industrial tribunal. I ask them to bear in mind the comment by my hon. Friend the Member for Bow and Poplar (Mr. Mikardo). A worker attending a tribunal could be faced with not only a £25 charge but the loss of a day's pay and travelling expenses. He could forfeit between half and two thirds of his weekly wage to take a case to an industrial tribunal. I hope that they will bear that in mind when they consider implementing the proposal for a £25 fee. If the Parliamentary Under-Secretary has not received considerable representations on the subject, I am certain that the Paymaster General has 1230 received a number of submissions, none of which supports the proposition to charge £25. I note with interest what has been said, and it is helpful.
I am sure that the Minister appreciates that, at the outset of the debate, I said that I accept and acknowledge the weakness that Oppositions have when introducing new clauses and, especially, new schedules. Most of the Minister's defence of his position amounted to nitpicking at the lack of the Opposition's drafting skills. The Minister has not answered the charge that my hon. Friends and I have laid against him—that, by the Government's own volition, a two-tier work force would have been created under the Shops Bill. We have pointed out that there would have been no difficulty in operating a two-tier system, because that is what the Government said when they introduced the new clause and the schedule to the Shops Bill. It has been alleged that a two-tier work force would decrease employees' efficiency. It is a pity that we did not hear more about that at that time. I suspect that the Minister will acknowledge that the Government had their back against the wall with that Bill and were therefore prepared to offer concessions all round. We have drawn one of the concessions out of that Bill and have sought to add it to this Bill. I am bound to tell the Minister that he has failed the test that we put him to tonight on that proposition.
I had hoped that the Government would have recognised that workers who are about to have changes made to their terms of employment and conditions, which will be imposed on them arbitrarily by their employers, should have some protection in law. The fact that the Government have refused to go along that line shows quite clearly that, once again, we must go into the Lobby. I urge my hon. Friends to join me in the Lobby in voting for new clause 2 and the schedule.
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 174, Noes 203.1233
|Division No. 290]||[7.33 pm|
|Abse, Leo||Clay, Robert|
|Adams, Allen (Paisley N)||Clwyd, Mrs Ann|
|Alton, David||Cook, Robin F. (Livingston)|
|Anderson, Donald||Corbett, Robin|
|Archer, Rt Hon Peter||Corbyn, Jeremy|
|Ashdown, Paddy||Craigen, J. M.|
|Atkinson, N. (Tottenham)||Crowther, Stan|
|Banks, Tony (Newham NW)||Cunliffe, Lawrence|
|Barron, Kevin||Davies, Rt Hon Denzil (L'lli)|
|Beckett, Mrs Margaret||Davies, Ronald (Caerphilly)|
|Beith, A. J.||Davis, Terry (B'ham, H'ge H'I)|
|Bell, Stuart||Deakins, Eric|
|Benn, Rt Hon Tony||Dewar, Donald|
|Bennett, A. (Dent'n & Red'sh)||Dobson, Frank|
|Bidwell, Sydney||Dormand, Jack|
|Blair, Anthony||Douglas, Dick|
|Boyes, Roland||Dubs, Alfred|
|Bray, Dr Jeremy||Duffy, A. E. P.|
|Brown, Gordon (D'f'mline E)||Dunwoody, Hon Mrs G.|
|Brown, Hugh D. (Provan)||Eadie, Alex|
|Brown, N. (N'c'tle-u-Tyne E)||Eastham, Ken|
|Brown, R. (N'c'tle-u-Tyne N)||Evans, John (St. Helens N)|
|Brown, Ron (E'burgh, Leith)||Ewing, Harry|
|Bruce, Malcolm||Fatchett, Derek|
|Buchan, Norman||Faulds, Andrew|
|Callaghan, Rt Hon J.||Field, Frank (Birkenhead)|
|Callaghan, Jim (Heyw'd & M)||Fields, T. (L'pool Broad Gn)|
|Campbell, Ian||Fisher, Mark|
|Campbell-Savours, Dale||Flannery, Martin|
|Clark, Dr David (S Shields)||Foot, Rt Hon Michael|
|Foster, Derek||Morris, Rt Hon A. (W'shawe)|
|Foulkes, George||Nellist, David|
|Fraser, J. (Norwood)||Oakes, Rt Hon Gordon|
|Freeson, Rt Hon Reginald||O'Brien, William|
|Gilbert, Rt Hon Dr John||O'Neill, Martin|
|Godman, Dr Norman||Orme, Rt Hon Stanley|
|Golding, Mrs Llin||Park, George|
|Gould, Bryan||Parry, Robert|
|Gourlay, Harry||Patchett, Terry|
|Hamilton, James (M'well N)||Pavitt, Laurie|
|Hamilton, W. W. (Fife Central)||Pendry, Tom|
|Harman, Ms Harriet||Pike, Peter|
|Hart, Rt Hon Dame Judith||Powell, Raymond (Ogmore)|
|Heffer, Eric S.||Prescott, John|
|Hogg, N. (C'nauld & Kilsyth)||Radice, Giles|
|Home Robertson, John||Randall, Stuart|
|Howells, Geraint||Redmond, Martin|
|Hoyle, Douglas||Richardson, Ms Jo|
|Hughes, Dr Mark (Durham)||Roberts, Allan (Bootle)|
|Hughes, Robert (Aberdeen N)||Roberts, Ernest (Hackney N)|
|Hughes, Roy (Newport East)||Robertson, George|
|Hughes, Sean (Knowsley S)||Rogers, Allan|
|Hughes, Simon (Southwark)||Ross, Ernest (Dundee W)|
|Janner, Hon Greville||Ross, Stephen (Isle of Wight)|
|Jenkins, Rt Hon Roy (Hillh'd)||Rowlands, Ted|
|John, Brynmor||Sedgemore, Brian|
|Jones, Barry (Alyn & Deeside)||Sheldon, Rt Hon R.|
|Kaufman, Rt Hon Gerald||Shields, Mrs Elizabeth|
|Kinnock, Rt Hon Neil||Shore, Rt Hon Peter|
|Kirkwood, Archy||Short, Ms Clare (Ladywood)|
|Lamond, James||Silkin, Rt Hon J.|
|Leadbitter, Ted||Skinner, Dennis|
|Leighton, Ronald||Smith, C.(Isl'ton S & F'bury)|
|Lewis, Ron (Carlisle)||Soley, Clive|
|Lewis, Terence (Worsley)||Spearing, Nigel|
|Livsey, Richard||Steel, Rt Hon David|
|Lloyd, Tony (Stretford)||Stott, Roger|
|Loyden, Edward||Strang, Gavin|
|McCartney, Hugh||Thomas, Dafydd (Merioneth)|
|McDonald, Dr Oonagh||Thomas, Dr R. (Carmarthen)|
|McGuire, Michael||Thompson, J. (Wansbeck)|
|McKelvey, William||Thorne, Stan (Preston)|
|MacKenzie, Rt Hon Gregor||Tinn, James|
|McNamara, Kevin||Torney, Tom|
|McTaggart, Robert||Wainwright, R.|
|McWilliam, John||Wallace, James|
|Madden, Max||Wardell, Gareth (Gower)|
|Marek, Dr John||Wareing, Robert|
|Marshall, David (Shettleston)||Weetch, Ken|
|Martin, Michael||Welsh, Michael|
|Mason, Rt Hon Roy||White, James|
|Maxton, John||Wigley, Dafydd|
|Maynard, Miss Joan||Williams, Rt Hon A.|
|Meacher, Michael||Winnick, David|
|Meadowcroft, Michael||Young, David (Bolton SE)|
|Mikardo, Ian||Tellers for the Ayes:|
|Millan, Rt Hon Bruce||Mr. Don Dixon and|
|Miller, Dr M. S. (E Kilbride)||Mr. Allen McKay.|
|Aitken, Jonathan||Carlisle, Kenneth (Lincoln)|
|Ancram, Michael||Churchill, W. S.|
|Atkins, Robert (South Ribble)||Clarke, Rt Hon K. (Rushcliffe)|
|Batiste, Spencer||Clegg, Sir Walter|
|Biggs-Davison, Sir John||Cockeram, Eric|
|Blackburn, John||Cope, John|
|Blaker, Rt Hon Sir Peter||Cranborne, Viscount|
|Body, Sir Richard||Dickens, Geoffrey|
|Boscawen, Hon Robert||Dicks, Terry|
|Bottomley, Mrs Virginia||Dorrell, Stephen|
|Bowden, Gerald (Dulwich)||Dunn, Robert|
|Brandon-Bravo, Martin||Durant, Tony|
|Bright, Graham||Favell, Anthony|
|Brown, M. (Brigg & Cl'thpes)||Forman, Nigel|
|Browne, John||Forsyth, Michael (Stirling)|
|Bruinvels, Peter||Forth, Eric|
|Buchanan-Smith, Rt Hon A.||Fowler, Rt Hon Norman|
|Budgen, Nick||Franks, Cecil|
|Burt, Alistair||Fraser, Peter (Angus East)|
|Fry, Peter||Mates, Michael|
|Gale, Roger||Mather, Carol|
|Galley, Roy||Maude, Hon Francis|
|Garel-Jones, Tristan||Maxwell-Hyslop, Robin|
|Gilmour, Rt Hon Sir Ian||Mayhew, Sir Patrick|
|Gow, Ian||Meyer, Sir Anthony|
|Gower, Sir Raymond||Miller, Hal (B'grove)|
|Grant, Sir Anthony||Mills, Iain (Meriden)|
|Greenway, Harry||Moate, Roger|
|Gregory, Conal||Monro, Sir Hector|
|Griffiths, Sir Eldon||Moynihan, Hon C.|
|Griffiths, Peter (Portsm'th N)||Neale, Gerrard|
|Grist, Ian||Needham, Richard|
|Ground, Patrick||Nelson, Anthony|
|Grylls, Michael||Neubert, Michael|
|Hamilton, Hon A. (Epsom)||Nicholls, Patrick|
|Hamilton, Neil (Tatton)||Norris, Steven|
|Hampson, Dr Keith||Ottaway, Richard|
|Hargreaves, Kenneth||Page, Sir John (Harrow W)|
|Harris, David||Patten, Christopher (Bath)|
|Harvey, Robert||Pattie, Geoffrey|
|Haselhurst, Alan||Pollock, Alexander|
|Havers, Rt Hon Sir Michael||Porter, Barry|
|Hayes, J.||Portillo, Michael|
|Hayhoe, Rt Hon Barney||Powell, William (Corby)|
|Hayward, Robert||Powley, John|
|Heathcoat-Amory, David||Prentice, Rt Hon Reg|
|Heddle, John||Price, Sir David|
|Henderson, Barry||Proctor, K. Harvey|
|Hickmet, Richard||Raffan, Keith|
|Hicks, Robert||Raison, Rt Hon Timothy|
|Hind, Kenneth||Rathbone, Tim|
|Hogg, Hon Douglas (Gr'th'm)||Rhys Williams, Sir Brandon|
|Holland, Sir Philip (Gedling)||Ridsdale, Sir Julian|
|Hordern, Sir Peter||Robinson, Mark (N'port W)|
|Howarth, Alan (Stratf'd-on-A)||Roe, Mrs Marion|
|Howarth, Gerald (Cannock)||Rossi, Sir Hugh|
|Howell, Rt Hon D. (G'ldford)||Rost, Peter|
|Howell, Ralph (Norfolk, N)||Rowe, Andrew|
|Hubbard-Miles, Peter||Ryder, Richard|
|Irving, Charles||Sackville, Hon Thomas|
|Jenkin, Rt Hon Patrick||Sainsbury, Hon Timothy|
|Johnson Smith, Sir Geoffrey||Sayeed, Jonathan|
|Jones, Gwilym (Cardiff N)||Shaw, Giles (Pudsey)|
|Jones, Robert (Herts W)||Shaw, Sir Michael (Scarb')|
|Kellett-Bowman, Mrs Elaine||Shelton, William (Streatham)|
|Kershaw, Sir Anthony||Shepherd, Colin (Hereford)|
|Key, Robert||Shersby, Michael|
|King, Rt Hon Tom||Silvester, Fred|
|Knight, Greg (Derby N)||Skeet, Sir Trevor|
|Knight, Dame Jill (Edgbaston)||Smith, Tim (Beaconsfield)|
|Knowles, Michael||Soames, Hon Nicholas|
|Knox, David||Speed, Keith|
|Lamont, Rt Hon Norman||Speller, Tony|
|Lang, Ian||Spencer, Derek|
|Latham, Michael||Spicer, Michael (S Worcs)|
|Lawler, Geoffrey||Squire, Robin|
|Lawrence, Ivan||Stanbrook, Ivor|
|Lee, John (Pendle)||Stanley, Rt Hon John|
|Lennox-Boyd, Hon Mark||Stern, Michael|
|Lewis, Sir Kenneth (Stamf'd)||Stewart, Allan (Eastwood)|
|Lilley, Peter||Stewart, Andrew (Sherwood)|
|Lloyd, Sir Ian (Havant)||Stradling Thomas, Sir John|
|Lord, Michael||Tapsell, Sir Peter|
|Lyell, Nicholas||Taylor, John (Solihull)|
|McCrindle, Robert||Taylor, Teddy (S'end E)|
|McCurley, Mrs Anna||Temple-Morris, Peter|
|Macfarlane, Neil||Thomas, Rt Hon Peter|
|MacKay, John (Argyll & Bute)||Thompson, Patrick (N'ich N)|
|Maclean, David John||Thurnham, Peter|
|McLoughlin, Patrick||Trippier, David|
|McNair-Wilson, M. (N'bury)||Twinn, Dr Ian|
|McNair-Wilson, P. (New F'st)||van Straubenzee, Sir W.|
|McQuarrie, Albert||Vaughan, Sir Gerard|
|Madel, David||Waddington, David|
|Major, John||Waller, Gary|
|Malins, Humfrey||Wardle, C. (Bexhill)|
|Malone, Gerald||Watson, John|
|Marland, Paul||Watts, John|
|Marshall, Michael (Arundel)||Wells, Bowen (Hertford)|
|Wiggin, Jerry||Tellers for the Noes:|
|Wolfson, Mark||Mr. Peter Lloyd and|
|Woodcock, Michael||Mr. David Lightbown.|
§ Question accordingly negatived.