Clause 45 - fixed-term work
Employment Bill
11:30 am
Mr Brian Cotter (Weston-Super-Mare, Liberal Democrat)
Clause 45 will implement the European Union fixed-term work directive, which was introduced following negotiations between the social partners. The explanatory notes that accompany the Bill state:
''The purpose of the . . . agreement is to apply the principle of non-discrimination to those in fixed term employment and to establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.''
The amendment would address that matter.
The Government have chosen to extend the directive also
''to prevent pay and pensions discrimination against fixed term employees'',
which we shall address later. In one sense, the Government have gone further than the original fixed-term directive requires, but in another, it is questionable whether they will implement the directive correctly.
In the framework agreement, the social partners rejected the term ''employee'' and instead used the wider term ''fixed-term worker''. The employer's side had originally wanted to use ''employee'', but conceded that point. The Law Society briefing states:
''Clause 2 of the agreement states that it should apply to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each member state.''
On the basis of that framework agreement it seems that a proper implementation of the directive into UK law means that the rights should be extended to both employees, as defined in the Bill, and workers as defined in existing anti-discrimination legislation or the Employment Rights Act 1996.
By limiting the scope of the Bill to cover merely employees, the Government could create a number of difficulties and deny protection to those who may be likely to be discriminated against, such as casual or temporary workers. The TUC points to those who are employed in the hospitality industry and cites the case of an agency worker who is employed by an off-shore crewing agency but works on a P&O ferry that sails from Portsmouth. She is employed on a weekly basis, meaning that officially she is laid off once a week when she comes ashore. She has been employed on that basis for three years. She receives the same hourly rate as equivalent permanent employees, but as she is an agency worker she is paid only for the time that she is on the ship. That means that she receives just £9,000 while her permanent colleagues receive £18,500 a year. Because she is not legally defined as an employee, she will not benefit from the measures introduced in the clause, a seemingly unjust state of affairs.
Another union officer who represents workers from Park Lane hotel refers to the case of a banqueting waiter who has worked 40 to 50 hours a week for 23 years and has been employed as a temporary worker throughout that time. Under the clause he, too, would not be entitled to treatment equal to that of permanent full-time staff.
In addition, the TUC says that temporary work is becoming ever more widespread: 1.7 million people, including many women and part-time workers, are employed on a casual basis in the UK. Under the Bill, employers would continue to have no obligation to provide similar pay rates, sickness leave or holiday pay to temporary workers. According to the TUC, 50 per cent. of employers pay temporary workers on pay rates different from those of permanent workers.
It is argued that those employed on a casual basis accept the lack of equal treatment because of the flexibility that temporary employment gives them and that they get a fair deal in that respect. What use is that to those temporary workers who find themselves
placed on temporary contracts in the same employment over a number of years? What rights do they have under the clause? The answer seems to be none. That needs to be rectified. In addition, by failing to apply the Bill to workers—which would be a correct interpretation of the EU directive—the Government are creating a situation in which decisions by the courts on the definition of an employee are likely to be overturned. That would create uncertainty for employee and employer.