Orders of the Day — Clause 4. — (Written Particulars of Terms of Employment.)

– in the House of Commons at 12:00 am on 26th July 1963.

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Lords Amendment: In page 2, line 36, leave out subsection (1).

Photo of Mr William Whitelaw Mr William Whitelaw , Penrith and The Border

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment is linked with those in page 4, lines 21 and 22. The House may think that it will be convenient to take the three Amendments together. The only Amendment of substance among these is that in page 4, line 21, at the end to insert: (8A) This section shall not apply to an employee if and so long as—

  1. (a) his contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (2) of this section, and under each head of paragraph (d) of that subsection, and
  2. (b) a copy of the contract (with any variations made from time to time) has been given to the employee, or the employee has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way,
and if at any time after the beginning of an employee's period of employment he ceases to come within the exception in this subsection, the employer shall give the employee a written statement under subsection (2) of this section not more than one month after that time.(8B) No account shall be taken under this section of employment during any period when the hours of employment are normally less than twenty-one hours weekly, and this section shall apply to an employee who at any time comes or ceases to come within the exception in this subsection as if a period of employment terminated or began at that time. Subsection (1), as it left this House, laid down that the Clause was not to apply if and so far as the terms listed in subsection (2) were included in a written contract. The question was raised in another place whether Clause 4(5) as it left this House, which concerns changes in the terms of contracts, was to apply to written contracts. On consideration we took the view that the Clause did not, in fact, deal satisfactorily with changes in the terms of written contracts. The main purpose of the Amendment is to put this right.

It was also suggested that the Clause, as it left this House, could be interpreted as requiring the employer to provide a written statement identifying the parties and specifying the date when employment began, even where there was a written contract giving all the particulars required by Clause 4(2). The Amendment also removes any possibility of that. The Amendment also removes any possibility of that kind.

The effect of the Amendment is that no written statement of any kind will be required by Clause 4 if and so long as there is a written contract which contains particulars of all the terms specified in Clause 4(2). I understand that that is what this House intended. This is subject to the condition that the employee either is given a copy of the written contract or has a copy of the contract made available to him. I think it right to put this condition in. The written contract would not be much use to the employee locked up somewhere where he had no access to it.

If the written contract does not cover all the terms listed in subsection (2), then, under the Amendment, the employer must provide a written statement as he already had to under the Clause as it left this House. He can, of course, use the written contract as a reference document for as many of the terms as he likes so that the written statement may be a simple one. This, again, was the desire of this House. If the terms are originally all set out in a written contract and they change later but no change is made in the written contract, the Amendment provides that at that point the employer will begin to be covered by Clause 4 and have to give a written statement under subsection (2) within one month.

The second subsection in this Amendment also makes clear the position of an employee whose hours of employment alter so that either he comes within the scope of Clause 4 or drops out of it. If, for instance, an employee's weekly hours are raised to 21 or more, he will be entitled to a written statement within 13 weeks of the date when that happens. I think that this is a useful Amendment which clarifies Clause 4 in a reasonable way. The other two Amendments are purely drafting. They enable the main Amendment to be put at the end of the Clause instead of at the beginning, which is probably better.

Photo of Mr Reginald Prentice Mr Reginald Prentice , East Ham North

I think that everyone welcomes the fact that the new wording stops certain loopholes and provides a draft with greater clarity than previously. This is one reflection, among others, of the somewhat muddled approach of the Government to the Bill in that this Clause was considerably amended in this House and had to be amended again in another place. We hope that now they have got it right.

It is important, I think, to ensure that what is guaranteed to the employee is that either he gets a copy of the statement or the contract, if the statement refers to a written contract, or that it is clearly available to him. That is the intention which the Parliamentary Secretary expressed and it is very important because we are introducing an entirely new principle into labour relations which of itself does not diminish anyone's right, but which could be used by an unscrupulous employer to put things on a piece of paper and afterwards to say, "This is a contract" and try to cheat people who are either careless of their rights or do not understand the position.

This Clause, with all its ramifications, is rather difficult to follow. I therefore suggest that it is very important for the Ministry to issue some sort of explanatory literature which will be available to employers and trade union officials and others setting out in ordinary language what is involved in order to discourage any bad employer from using this to cheat his employers and to ensure that trade unions and individuals can check on what they are entitled to under the Clause.

Photo of Mr John Hare Mr John Hare , Sudbury and Woodbridge

I will be very pleased to follow the suggestion of the hon. Member for East Ham, North (Mr. Prentice). That was my intention. We want to ensure that as much lay language as possible is used.

Photo of Sir Arthur Irvine Sir Arthur Irvine , Liverpool Edge Hill

I agree with what my hon. Friend the Member for East Ham, North (Mr. Prentice) has said and I am pleased at the Minister's response.

I can understand the usefulness of the Amendment to the extent that its effect is to avoid duplication of a contract in writing already containing all the terms required by the Bill to be in the written statement. I can understand a provision which has the effect that when in such a case there is an amendment of the terms, that must be conveyed to the employee just as stringently as when the terms were comprised in a document in writing such as is referred to in the Clause as is in the written statement contemplated by the Bill.

It is a little difficult to tell at once from the wording of the Clause whether this Amendment will have any effect on the law relating to contracts in so far as it relates to contracts for service containing material which is not required to be in the written statement called for by the Bill. My apprehension is that it does not alter the law save within the context of the matters required to be in the written statement. I do not know whether or not that can be cleared up immediately, but I have a doubt about the Amendment's effect in that regard.

Photo of Mr William Whitelaw Mr William Whitelaw , Penrith and The Border

As on the very large number of occasions when the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) brings these points forward, I understand that his apprehensions are correct. If, on subsequent investigation, there should be any change in that, I will let him know. However, I understand at the moment that the answer to him is, "Yes".

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Lords Amendment: In page 4, line 30, at end insert: ( ) The last foregoing subsection shall not affect the obligation to specify the date when the employment began in a statement under subsection (1) of this section, but in such a statement given to an employee whose period of employment began before the date of the coming into force of this section, and is not less than five years, the obligation may be discharged by stating that the employee has been employed for not less than five years.

11.15 a.m.

Photo of Mr William Whitelaw Mr William Whitelaw , Penrith and The Border

I beg to move, That this House doth agree with the Lords in the said Amendment.

The Amendment deals with only two minor points, but it is nevertheless useful.

Clause 4(2) of the Bill, as it left this House, obliges the employer to give his employee a written statement not later than 13 weeks after the beginning of the employment. Clause 4(9) as it then was dealt with the position of employees already in employment at the date when Clause 4 was brought into force. They are to have written statements within 13 weeks of that date. Subsection (9) brings this about by saying that for employees already in their jobs when Clause 4 comes into force references to the date when Clause 4 comes into force are to be substituted for references in the Clause to the beginning of the period in employment.

This, apparently, could have one curious side effect. The written statement has to specify the date when the employment began. Clearly, it should do this for people already in employment when the Bill comes into force as well as people engaged afterwards. But without the Amendment Clause 4(9) could have been taken as meaning that the written statement should specify instead the date when Clause 4 comes into force. The Amendment removes that possibility.

The Amendment has a further effect. It may not be easy for the employer to say exactly the date when an employee with many years of service was taken on. We do not want to put the employer to the labour of unnecessary research, and I am sure that the House will agree with that. For the purposes of the Bill, it does not matter when the employer was taken on so long as it was over five years ago. The Amendment, therefore, allows the employer in this case simply to say in the written statement that the employee has been employed not less than five years.

I hope that the House will agree that this is a sensible change which removes a possible doubt and that it will accept the Amendment.

Question put and agreed to.

Lords Amendment: In page 4, line 31, leave out subsections (10) to (15) and insert them as new Clause "A": A.—(1) If a person—

  1. (a) without reasonable excuse fails to comply with any of the requirements of section 4 of this Act, or
  2. (b) in a statement under that section or in any document prepared for the purposes of subsection (7) or subsection (8) of that section includes anything which to his knowledge is false in a material particular, or recklessly includes anything whcih is false in a material particular,
he shall be liable on summary conviction to a fine not exceeding twenty pounds.(2) If an employer has failed to give the statement required under subsection (3) or subsection (6) of the said section 4 within the time limited by that section then, without prejudice to the brnging of proceedings under the foregoing subsection, the employee may by notice in writing to the employer require him within a period of not less than one week from receipt of the notice, to make good his default, and if the default continues after the expiration of that period, the employer shall be liable on summary conviction, in the case of a first offence under this subsection to a fine not exceeding twenty pounds, and in the case of a second or subsequent offence under this subsection to a fine not exceeding one hundred pounds.(3) If an employee's employment terminates within the time limited by the said section 4 for giving a statement required under subsection (3) or subsection (6) of that section, and before the statement is given, no offence is committed under this section in respect of the failure to give the statement.(4) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.In this subsection, the expression 'director', in relation to any body corporate which is established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking and whose affairs are managed by the members thereof, means a member of that body,(5) The Minister shall have power by order to provide that the said section 4 shall have effect as if such further particulars as may be specified in the order were included in the particulars to be included in a statement under that section.(6) An order under the last foregoing subsection may contain such transitional and other supplemental and incidental provisions, including provisions amending subsection (3) of the said section 4, as appear to the Minister to be expedient, and may be varied or revoked by a further order so made.Any such order shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Mr. Whitlaw:

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is a very long Amendment, but it is purely drafting. Clause 4 was already long when it left this House. It then took up about three printed pages. It would have been made longer still by Amendments; adopted in another place to clarify the provisions about written contracts which we have just considered. We were solicitous, as always, to help the hon. Member for East Ham, North (Mr. Prentice) and the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine)—and, indeed, everyone concerned. We therefore felt it right to split the Clause in two. This the Amendment does, by tuning subsections (10) to (15) into a separate Clause.

I hope that the House will agree that this is desirable, and in the general interest.

Question put and agreed to.