Lord Sainsbury of Turville (Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry; Labour)
My Lords, Amendments Nos. 111 and 114 seek to amend Clause 45 by placing a duty on the Secretary of State to make regulations that would ensure fixed term workers are no less favourably treated than comparable permanent employees. However, I believe that the intention of the amendments is to question the coverage of the entire clause rather than its first paragraph only.
We take the view that in making provision about employees we are fully implementing the European Community fixed term work directive. Let me explain why. As the noble Lord rightly said, the directive requires us to legislate in respect of,
"fixed term workers who have an employment contract or employment relationship as defined by national law and/or practice".
It is clear from these words that this is not a case where there is a single, Community-wide meaning of "worker"; therefore the UK can choose its own definition provided that it is defensible. The use of the word "worker" in the directive does not mean that the UK must implement in respect of all workers.
We take the view, both on underlying legal principles and precedent from the UK's existing employment legislation, including the implementation of other directives, that it is within the UK's discretion to implement in relation to employees only. In so doing, we would be replicating the coverage of most domestic UK employment rights legislation, including rights related to collective redundancies and European works councils, rights to parental leave and written statements of employment particulars. All of these implement EU directives. We would also be protecting those most likely to have the length of their working relationship determined by reference to time in line with the purpose of the directive.
It has been argued that the reference to "employment contract or relationship" in the directive requires us to cover employment relationships other than contracts of employment. The draft Fixed Term Employees (Prevention of less favourable treatment) Regulations cover not only employees but also Crown servants, House of Commons and House of Lords staff and certain police officers who are not employees. These categories of person will not necessarily have contracts of employment. Applying the regulations for these employment relationships replicates the coverage of other domestic legislation. The wording in the directive was also used in the parental leave directive. Regulations implementing that directive apply to employees only.
I have seen no evidence that fixed term non-employee workers are being less favourably treated than comparable permanent non-employee workers because they have fixed term employment relationships. It is therefore very difficult to identify any beneficiaries of an extension in the coverage of the regulations.
The key group of workers who might qualify as workers but not as employees are agency workers. As my honourable friend in another place pointed out, the fixed term directive specifically states that it does not apply to temporary agency workers. This does not mean that all other workers are included on the grounds that they are not specifically excluded. In particular, the directive does not cover members of the Armed Forces, but there is no specific exclusion.
As noble Lords will be aware, we are currently conducting a review of employment status in relation to statutory employment rights. As my noble friend Lord McIntosh informed the House on 2nd June, we intend to publish a discussion document on this issue as soon as possible. This will seek views on the current definitions used in employment law and whether there may be a case for extending the coverage of certain rights.
I hope that I have answered the noble Lord's questions. It is difficult to see who would benefit from the amendment. It is also not timely given that we are currently conducting a review of employment status in relation to statutory employment rights. I hope that that explanation of our thinking is helpful and I would ask the noble Lord to withdraw the amendment.