My Lords, as well as the Employment Rights (Miscellaneous Amendments) Regulations 2019, I will also speak to the Agency Workers (Amendment) Regulations 2019 and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019. These three statutory instruments contain five measures to clarify and extend workers’ rights, taking forward the Good Work Plan—the biggest boost to workers’ rights in over 20 years.
The Employment Rights (Miscellaneous Amendments) Regulations contain three measures. First, they extend the right to a written statement of employment particulars to workers. Currently, only an employee is entitled to a written statement, and only after a month with the same employer. In his report, Matthew Taylor recommended greater transparency by extending the right to a written statement to workers. We agree that all workers should have the same clarity of information that employees currently benefit from.
The second measure amends the Information and Consultation of Employees Regulations 2004, lowering the threshold for a request to set up information and consultation arrangements in the workplace from 10% to 2% of the total employees. The Government agree with Taylor that voice and engagement is key to good work. Therefore, we are making it easier for workforces to request that employers be more open about what is happening in their workplace. It is important to note that this statutory instrument does not change the important rights that information and consultation representatives have, including paid time off and protection against detriment, the number of employers in scope of the regulations, which is staying at those with 50 or more employees, or the minimum of 15 employees required for a request to set up information and consultation arrangements. Good employers engage regularly with their workforce. To quote Taylor:
“Well-run companies recognise the importance of the people who work for them. They invest time and effort in good management relationships”.
The third measure increases the maximum penalty available to employment tribunals where there has been an aggravated breach of workers’ rights. From
The second statutory instrument—the Agency Workers (Amendment) Regulations 2019—abolishes the “Swedish derogation”. At present, agency workers can opt out of the entitlement to equal pay in return for pay between assignments through a Swedish derogation contract. Taylor highlighted that Swedish derogation contracts can be exploitative, and workers sometimes do not receive the equal pay they are entitled to. Our consultation and earlier BEIS research uncovered cases where pay between assignments was not given. We concluded that agency workers are not benefiting from the Swedish derogation and we are therefore taking action. I think that this reform has been welcomed across parties.
The Joint Committee on Statutory Instruments drew the special attention of both Houses to this instrument on the ground that it required elucidation in one respect. The department provided elucidation to the committee. The instrument relies on powers in Section 2(2) of the European Communities Act 1972. The committee asked how the instrument would survive exit day, given that Section 2(1) of the European Union (Withdrawal) Act 2018 saves legislation made under Section 2(2) of the 1972 Act,
“as it has effect in domestic law immediately before exit day”,
and this instrument does not come into force until April 2020. The answer is that this instrument would be on the statute book immediately before exit day, and due to come into force in April 2020. The effect is preserved by Section 2(1) of the withdrawal Act so that the instrument will still come into force as intended. The committee accepted that this is one possible interpretation. It is the Government’s clear view that instruments such as this will come into force as intended. This can also be seen from the explanatory notes to the withdrawal Act, which confirmed that the legislation referred to in Section 2(1) of that Act includes legislation that has been passed or made but is not yet in force.
The repeal of the Swedish derogation will make a significant, positive difference to agency workers in the UK. We have listened to agency workers’ concerns and are taking firm action in response.
Finally, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations introduce a “key facts page” for agency workers signing with an employment business. The Taylor review identified transparency of information as an issue in the engagement of agency workers. Different payment processes are often confusing, and Taylor noted the risk of exploitation. These regulations therefore introduce a key facts page, giving agency workers more clarity over pay and other key facts before signing with an employment business. Unions, businesses and workers alike welcomed this in our consultation. From April 2020, employment businesses will give all agency workers signing up a key facts page, containing a number of largely pay-related facts presented in a clear manner. If an agency worker is paid through a third-party umbrella company, the key facts page will reflect this, including information about any deductions the umbrella may make and how these are calculated. Agency workers will have more information about who is responsible for paying them and what they will receive for an assignment, enabling better-informed decisions before agreeing to take on work.
With the exception of the quadrupled aggravated breach penalty, the measures I have outlined take effect from April 2020. This gives time for employers to adapt their systems, and individuals to understand the increased transparency and rights. I commend the regulations to the House, and I beg to move.
My Lords, I am grateful to the Minister for outlining the main provisions in this suite of SIs. I have to say, it is a great pleasure not to be talking about Brexit, and to be talking about improvements in employment rights following the Taylor report. I record my thanks to the TUC for its briefing, although I do not necessarily agree with all its conclusions and comments.
It is very important that we move with the times, ironing out some of the unintended consequences of previous legislation and adapting to some of the issues developing through changes in the ways that we work. The Swedish derogation is one of the unintended consequences. I well remember introducing the Agency Workers Regulations 2010 when I was in another place. We introduced the right for agency workers to receive the same employment and working conditions as permanent staff after 12 weeks of service. The Agency Workers (Amendment) Regulations seek to remedy this loophole, which meant that some employers were getting out of giving full employment rights to agency workers by using Regulations 10 and 11 to waive the right to the same pay as a permanent worker if they signed a “pay between assignments”, also known as the Swedish derogation, which promised to pay in between assignments. Some employers were abusing this regulation, not paying material pay between assignments by keeping their staff on artificial, minimum hours contracts or deducting their “between assignments” pay from their “on assignment” pay. This Swedish derogation is to be revoked on
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 introduce the welcome reform that employment agencies must give the worker information before a contract is agreed—on pay, benefits, costs, deductions and fees. It must also include the minimum rate of remuneration payable to the work seeker and the nature and amount of any deductions made to their remuneration. It must also include a worked example of a payslip. The first payslip often comes as a bit of a shock to employees, let alone an agency worker, when they see all the deductions. This key information sheet should improve transparency around pay arrangements; it is very welcome.
The final, and also very welcome, SI is the Employment Rights (Miscellaneous Amendments) Regulations 2019. These increase the maximum level of penalty available for,
“aggravated breach of a workers employment rights", from £5,000 to £20,000. I am not entirely sure what “aggravated breach” would entail. In his remarks, the Minister talked about the minimum wage. Is it wider than that? I understand that it would persistently be breaching employment law, but how many breaches would there need to be before it becomes aggravated? This opens up the question of how many breaches are happening at the moment. The Explanatory Memorandum says that, since introducing the penalty for aggravated breach, 31 penalties have been issued. Can the Minister confirm that this 31 relates to total time since the Employment Tribunals Act 1996? That would indicate to me that there must have been more persistent breaches of employment law than that. I think it is absolutely fair to raise the limit of fine for an aggravated breach, but this will not be much of a deterrent to an employer if there is very little risk of detection. The Minister may not have the figures relating to how many companies have been inspected since 1996 and what that constitutes as a proportion of the total number of companies, but would he be so very kind as to write to me with the statistics that the Government collect regarding inspections and prosecutions for non-aggravated penalties issued since 1996, or whichever is the correct date of the legislation coming in?
A second welcome part of this SI is the extension of the right to a written statement to “dependent contractors” as well as employees. Here I would appreciate some clarification from by the Minister. I am taking “dependent contractor” to include individuals in the gig economy, but I was hoping for a little more in the explanatory notes. I would be grateful if he could write to me, or point me in the right direction, to help me understand a little better the issues facing dependent contractors. I do understand that the Government are consulting on employment status, and that there has certainly been a lot of controversy over the employment status of employees in the gig economy. Could the Minister inform the House what progress is being made on this?
The third provision was to lower the percentage requirement for a valid employee request for the employer to negotiate an agreement on informing and consulting employees, from 10% to 2% of the total. In his remarks, the Minister said that it was important to consult. I agree, but can he give a little bit of context on this, please? I am not sure if this is a very minor issue or, potentially, a big one. Could he give any examples of what employees might need to be informed and consulted on which they are not at present? The 2004 regulations, which originally imposed this application, related to employers with at least 50 employees. I presume that the same threshold number of employees would apply to this amendment. Can the Minister confirm this?
In conclusion, although the TUC felt that many more protections and issues should have been covered in these SIs, I think there is some good stuff in here. There is always a balance to be drawn between all the partners in any enterprise. More can always be done, and, as the economy develops, more will be needed, but I believe we are at least headed in the right direction.
My Lords, I raised the issue of care agencies earlier, regarding carers who do one hour in one place, one hour in the next and so on, all of them potentially quite far apart. There was a court decision, at a very high level, that they must be paid for their time travelling between places. I have followed this up, and have been told that, in general, they are not being paid. It is local authorities that pay for carers, but they do not seem to be paying them for this, which is very wrong, as there has been a court decision. Where in these regulations will this be covered? It seems highly relevant. I have had a great deal to do with the people who are not getting this money; when they point it out, their companies say they have no intention whatever of paying it. This is wrong since there has been a trial case. I hope the Minister can tell me where it will be covered in these regulations.
My Lords, the noble Baroness, Lady Gardner, raises an important point. I look forward to the Government’s response to her very pertinent question.
I give a qualified welcome to these regulations. They certainly aim to alleviate, or eliminate, some weaknesses in British employment law. I particularly draw attention to the proposed end to the so-called Swedish derogation in the agency workers’ directive. This has been a long-standing loophole, allowing employers not to provide equal pay to agency workers if the workers agree to a lower rate of pay when the agency cannot find them work. I am usually an admirer of the Swedish labour market, but I wish we had not taken this import from what is normally a very advanced country on employment rights.
Agency working is now a major feature of the British labour market and is being abused in some cases. I do not want to overstate the case—there are plenty of areas where it works well—but European law designed to regulate this area has been built up over a period. We used to refer to agency workers, and temporary workers in general, as atypical workers. We do not use that term any more, because now agency working is typical; in many parts of the country, it is the main offering. It is a rather insecure method of working, a method which I do not think too many people like. Some it suits, but many it does not. The EU certainly sought to bring atypical workers’ conditions in line with those of regularly employed people, and for them to receive equal treatment. That was a long-standing theme of European employment legislation. It is important that unscrupulous employers do not use agency working to undercut the terms and conditions of regularly employed workers.
The Swedish derogation is one weakness—I repeat that I welcome the action that the Government have taken on it—but one other loophole remains, which these regulations do not cover. An agency worker must work for 12 weeks before they become entitled to pay equal to that of a directly employed worker. There are many agency workers whose assignments never reach 12 weeks, and some employers who make sure they never do by rolling them on to a new assignment and a new contract. I ask the Government to re-examine this weakness in the regulations.
I turn briefly to another point concerning agency workers and the proposal to provide more information to the individual worker, so that they know their entitlements and their obligations. The extra information to be provided is welcome but it should not come out in dribs and drabs, in separate bits of paper and so on. At the moment, agency workers can be signposted to other sources of relevant information. The aim should be to put it concisely, perhaps on two sides of a sheet of paper, so that it is readily available without too many references at the bottom of the page to various websites and so on.
The regulations contain improvements to employment rights, too, which are certainly useful as far as they go. I draw particular attention to the changes in the information and consultation regulations. The 10% support threshold has proved a formidable barrier to workers and unions trying to use this European-derived law. No other country in the EU implemented it in such a restrictive way, making the process of information and consultation so difficult to achieve. It should be a universal practice: it is good practice that employers inform workers about change, consult them and seek their views on it before the change is effected. It should be standard practice but it has been a minority practice in this country and is nothing like prevalent enough.
These regulations are a step in the right direction and make it easier but there is also a missed opportunity in them. Could the Government not have been a bit more ambitious in extending the coverage to all workers, as recommended in the Taylor review? At the moment, agency and casual workers are excluded. Could there not be a provision for employers to agree collective and independent consultation arrangements when requested by a recognised union or, say, five workers in a non-union workplace? If we believe in employers informing and consulting workers about proposed change—I trust that we are all getting to that position now—we should make it a very easy and simple process by strengthening the obligations on employers.
In sum, these provisions are steps in the right direction and no doubt reflect the widespread concern in this country about what is termed the gig economy because, for too many workers, employment can be nasty, brutish and short. It seems that with pay levels languishing ever since the financial crash in 2008, more attention needs to be paid to the people at the bottom of the income ladder struggling to make ends meet—the kind of people the noble Baroness, Lady Gardner, referred to so well. The result is that inequality continues to rise as the top echelons of executives pay themselves even larger dollops of cash and benefits. It is high time that we develop countervailing pressures, which involve strengthening unions as well as giving workers more legal rights, so that we can at least get a better balance in the labour market in Britain.
The Government’s good work agenda is, I recognise, a modest step in seeking to do that. These changes are certainly a step in the right direction but no substitute for participation in the European social and legal programmes. I hope that the Government will commit, when and if we leave the EU, to keep our rights in alignment with developments there. Much remains to be done.
My Lords, I will be very brief. I want to raise three points. The Minister mentioned in his opening remarks that this was the most significant set of changes in employment relations in 20 years. I am quite happy for him to exercise that kind of poetic licence but there will be something really worth celebrating on Monday, because that is the 20th anniversary of the introduction of the statutory national minimum wage. To compare these regulations with that sort of development is, as I say, poetic licence but let us be generous on the last day of the week.
My second point is that when I worked at ACAS, which is of course now quite a long time ago, the helpline used to receive calls which were mainly from employees but also from employers. They showed a very different picture in the real world from what regulations and the law said. I still think that the situation has deteriorated, if anything, simply because—as my noble friend Lord Monks said, and I agreed with his every word—it is sometimes a very different picture on the ground and people are grateful for the small mercies they get. We need to remind ourselves that any change in regulation has to be monitored and any fines implemented. The picture of a whole generation of younger people with very little expectation of a permanent contract, an occupational pension or real maternity leave rights—given the extent to which women are sacked because they apply for it, even though we know that is illegal—is such that if the Government mean business, they will have to take seriously how they promote the existing law and ensure that it is enforced.
That brings me on to my point about employment tribunals and fines. One of the biggest problems was that the employers did not pay the fines, so it is all very well increasing the amount but it would be useful to know from the Minister what the situation is now. What is the proportion of employers who refuse to pay the awards made by the tribunals?
Finally, I accept that a very good step forward has been made regarding written statements, which was one of the biggest issues on the ACAS helpline. People were not being given their statements or, as my noble friend Lord Monks said, they were fed in dribs and drabs so that they would not have a complete picture. For example, an important reference to their rights would consist of, “Please look up the employer’s website”. That is an extremely important move and it would be useful if we could monitor what improvements are made as a direct result of this statutory instrument.
My Lords, I too welcome the strengthening of workers’ rights contained in these regulations as a work in progress that begins to address—to use the Government’s words in their own Good Work Plan—the fact that,
“some businesses have transferred too much business risk to the individual, sometimes at the detriment of their financial security and personal wellbeing”.
These regulations, however, are introduced in the context of concerns about the consequences of the UK’s departure from the European Union, when workers will no longer have access to the enforcement mechanisms and decisions that they currently enjoy. Nor will they benefit from future decisions of the Court of Justice of the European Union or from ensuring that UK workers will not fall behind in the development of rights in the EU.
Yes, these regulations will increase the maximum penalty from £5,000 to £20,000 where there has been an aggravated breach of a worker’s employee rights, to act as both punishment and deterrent for poor employer behaviour, although that penalty is capped at 50% of any compensation award. But enhanced rights, as captured in these regulations, will be of limited value if workers do not have access to justice when they are breached. If workers cannot enforce their rights, they are rendered meaningless.
We saw a staggering fall of 70% in the number claims brought to employment tribunals when fees were introduced and a disproportionate impact of that fell on women, particularly low-paid and pregnant women. The Government have not ruled out the reintroduction of fees, observing only that there will be a consultation exercise if they are reintroduced. UNISON’s legal challenge to their original introduction resulted in the Supreme Court ruling that the Government had acted unlawfully. Reintroducing fees would undermine again the reforms set out in these regulations. Can the Minister update us on the Government’s current intentions with regard to tribunal fees?
The Government recognised the scale of non-compliance with basic employment rights in their own Statement on the Good Work Plan, when they referred to the Government considering,
“the case for creating a new single labour market enforcement agency”.—[
Again, can the Minister update us as to the current state of the Government’s thinking on such an agency?
These regulations, while welcome, are not sufficient to tackle the insecurity that many workers face through less job security, the decline in the quality of the employment contract and volatility of earnings. The Government frequently refer to the headline increase in the numbers in employment, but refer less to the changing pattern of employment growth underlying that headline—for example, the distinction between employee and non-employee workers, with the latter missing out on key employment protections applying to employees. Workers who are non-employees are entitled only to a lower tier of employment rights which excludes protection against unfair dismissal, entitlement to statutory redundancy pay or minimum periods of notice on dismissal. They have far less security.
The Labour Force Survey, which the impact assessment relies on to reference atypical work, does not explicitly collect data on the issue of employee and non-employee workers. The Government admit in the impact assessment that they have not established robust figures for the number of workers with the less secure status of non-employee worker.
We have also seen an increase in self-employment, particularly lower-paid self- employment, which now accounts for more than 15% of the labour force, and a rise in the number of zero-hours contracts and other characteristics of the gig economy. Only a minority of the net new jobs created over the recent three-month period measured—November to January—were more traditional, full-time jobs; the others included mostly part-time jobs and full and part-time self-employment.
More than 60% of private sector workers in the UK now work for SMEs, with some 12 million working for small employers. A recent report from the Resolution Foundation revealed the extent of volatility of earnings experienced by workers in today’s world, impacting both low and middle-income earners and challenging the assumption of the steady monthly wage. Two in five workers experience persistent volatility, with significant changes in monthly pay at least six times a year. Of course, extending the right to a written statement of terms and conditions of employment to all workers is very welcome, but those statements will not be sufficient to address the transfer of too much business risk to the individual, to their detriment, when the underlying rights and security remain weak. Much more needs to be done to adapt to the realities of a changing UK labour market.
Turning to the amendments to the Information and Consultation of Employees Regulations, I am not overly confident that lowering the threshold for a request to trigger the negotiation of information and consultation arrangements from 10% to 2% of employees will be a sufficient policy lever to deliver the desired step change in employee engagement in the workplace. None the less, I welcome them as a move in the right direction. I hope that my reticence will be proved wrong and that we will see the step change aspired to, but, as my noble friend Lord Monks said, the amendments lack ambition when lack of employee engagement is such a challenging issue.
Given the extension of the right to a written statement on employment terms to non- employee workers because it,
“would help to improve the situation of a cohort of workers often seen as vulnerable”,
I fail to comprehend why the information and consultation regulations are not extended to all workers, as Matthew Taylor recommended—surely the logic applies both to the written statement and to the consultation. I see no clear line of reasoning from the Government as to why they would not extend it to all workers. Similarly, given that some 12 million workers are now employed in small companies, maintaining a threshold of 15 employees before these regulations apply will exclude a lot of workers from that drive for greater employee engagement.
Finally, I stress that strengthening the rights of agency workers to earn the same pay as permanent staff and to be given information on their work assignments and other important matters is very welcome. Improving the rights of agency workers has been a lengthy campaign —in my previous life, I was part of it—and, ironically, the impetus of an EU directive assisted that progress. However, as many have instanced, we have already witnessed market abuse of the Swedish derogation contracts to sustain unequal pay and we may see the emergence of other creative market behaviour to undermine the intent of these regulations—which, I stress, are welcome and positive. How will the Government monitor and report on the effectiveness of these regulations in practice so that we do not see such suboptimal creative market behaviours, which would undermine the good intent of the regulations before us?
My Lords, I thank the Minister for his introduction to these SIs. Many of the points that I intended to make have already been made by the noble Baronesses, Lady Burt and Lady Gardner, and my noble friends Lady Donaghy, Lady Drake and Lord Monks. The House will be pleased to hear that I shall therefore not repeat everything that has been said as well as the many questions that have been asked. However, there are a couple of issues that I want to highlight and reinforce, and a couple of questions I want to ask.
The greatest concern on this side of the House is that these regulations do not do justice to the, admittedly limited, Taylor report. When first published, my honourable friends in the other place warned that its recommendations did not go far enough, yet it seems that the Government are failing to meet even those basic suggestions.
There is also the issue of the considerable delay. After years of consultation and press releases, what has eventually been published amounts only to some minor tweaks and limited changes to employment laws. Ultimately, this is only further evidence of the Government’s failure to address the growing inequality in the quality of work, and increasing insecurity and low pay, across the UK. It will soon be three years since the review was first commissioned. Before I move on to the specific instruments at hand, can the Minister confirm that all 53 of its recommendations will finally be implemented by that milestone?
The crux of the Employment Rights (Miscellaneous Amendments) Regulations 2019 is to ensure that workers, rather than employees, are given a written statement of certain information relating to their position. The fact that a written statement will be given is welcome, but it is disappointing that that information is contained in separate negatives. Why has it been decided that this information would not be in this instrument? It is also questionable what a statement will achieve without the necessary routes to challenge the information given in the document. Regarding that, what exact mechanisms will exist for workers to challenge the information given in the statements, if they had understood the particulars to be different?
My noble friend Lord Monks has already touched on information and consultation. I support his points on that.
The Agency Workers (Amendment) Regulations 2019 seek to amend the loophole in the regulations which has meant that agency workers employed on permanent contracts with recruitment agencies can miss out on the right to equal pay, in return for a promise of pay when the agency cannot find them work. As the House has heard, these are known as payments between assignment contracts, or Swedish derogation contracts. The removal of the Swedish derogation is welcomed by this side of the House. The TUC has previously found that, as a result of this loophole, workers have been earning up to £4 an hour less than directly employed staff, even though they may carry out exactly the same work. Unfortunately, the changes will not come into force until
As a result of these regulations, there will be a significant burden on the EAS to enforce the changes. Can the Minister confirm that the inspectorate will be fully equipped to ensure that all businesses which exploit agency workers will be taken to task?
As my noble friend Lord Monks said, there is also the issue of other loopholes in the legislation, which could lead to the original purpose of the regulations being undermined. Have the Government considered fully removing the 12-week qualifying period, as that would help remove one of them?
Finally, I come to the conduct of employment agencies regulations. In a similar vein to the other regulations, this SI sets out new provisions in the conduct regulations, meaning that agency workers will be entitled to further key information about their assignments. It ensures that employment agencies provide agency workers with a key information document before signing the terms of employment. Any attempt to address issues of pay confusion are, and will be, welcomed, but it is unclear whether this new document will be in the most appropriate format. Will guidance be given to businesses on how the document should be formatted? In common with the other regulations debated today, it is important that provisions of enforcement have been considered. Unless enforcement is properly resourced, even the limited proposals announced will amount to very little. How does the Minister envisage enforcement taking place?
In conclusion, the limited regulations debated today are welcome and have qualified support, as my noble friend Lord Monks said. The issues that have been raised show that the problems lie largely with the fact that they are too timid. If the Government were serious about improving the lives of workers, they would be implementing a far more transformative set of policies rather than these tweaks, especially in the light of the recent prime ministerial statement attempting to woo the trade unions and Labour MPs to support her deal on Brexit. Are her offers of strengthening workers’ rights now gone, with her threat to resign? If not, how do the Prime Minister’s interventions fit with today’s SIs?
My Lords, I thank all noble Lords who have spoken for their generally fairly positive response to the regulations. I will start by correcting myself, and trying to assist the noble Baroness, Lady Donaghy, who accused me of poetic licence in describing these as the most significant change in 20 years. I must make clear that I was not saying that these regulations were, in themselves, the most significant change; it was our Good Work Plan that was. I offer a small correction to her and say 19 years and 360 days, to allow her her 20th anniversary of the minimum wage, which the coalition Government and this one have continued. I think all parties agree that the national minimum wage, and the national living wage introduced by the Conservative Government, have made a great difference. The Taylor report was commissioned by this Government, and my right honourable friend came up with the Good Work Plan after it. The noble Baroness will be familiar with it; she will have gone through all the recommendations and noticed the large number for which the response is “Accept, accept, accept”, or “We will consult”, or “We will do this or that”. We have a good record and I will amend the 20 years to 19 years and 360 days. That obviously makes her happy.
It is important to remember that these are just one small part of that package. The Good Work Plan sets out a very ambitious programme of work to do, some of which will require primary legislation, some no legislation at all, and some secondary legislation of this sort. We are committed to bringing forward further legislation. The noble Baroness, Lady Drake, and others will obviously have to wait until we get that. We will continue in that vein.
The noble Baroness, Lady Drake, expressed her concern that we were going to fall behind Europe. As I have made clear on other occasions—she knows my views—we are well ahead of European provisions in many areas. One has to look only at paternity pay, which was introduced by this Government, and at where we are on maternity pay. I could go on, but will not because we are debating only these three sets of regulations at the moment. There is a proud tradition, in all parts of the House, of getting workers’ rights right. We regularly surpass UK standards and are leading the way internationally in tackling challenges to modernise the labour market, at a time when it is, necessarily, changing because technology and the way we work change.
I shall deal with some more of the points raised, but on some issues I may have to write in further detail. The noble Baroness, Lady Burt, may be looking forward to a long letter, but I hope that I can deal with some of the issues. She asked what “aggravated” means. I do not know how many lawyers are in the Chamber at the moment—there are usually quite a few—but it is a word familiar in law and can assist the courts in dealing with serious things. I do not foresee any problems there. She asked about penalties since 1996 and how many companies have been inspected. I shall write to her in further detail on that and on the definition of “dependent contractor” in the written statements. I agree with her that employment status is a very difficult matter and more work needs to be done in this area. It has always been difficult to define who is employed and self-employed, as well as the difference between an employee and a worker, and it will no doubt come forward in primary legislation.
I turn to the information and consultation part of the first instrument. The noble Baronesses, Lady Burt and Lady Drake, and the noble Lords, Lord Monks and Lord McNicol, had concerns about lowering the request threshold from 10% to 2%. The noble Baroness, Lady Drake, was sceptical as to whether that would make a difference, but I believe that it will make it easier for workers to request better ICE arrangements. As we all do, I think that strengthening the workers’ voice in the workplace will improve workplace relations and allow employees to discuss issues that affect them, raise concerns and influence strategic issues. We will keep that under review and can come back to it: we will deal with it here in a statutory instrument and in due course we can look at it again. I hope that the noble Baroness, Lady Drake, will be patient until we see what effect reducing the threshold from 10% to 2% will have.
I think there was general agreement that it was a good thing that the Swedish derogation is going. We agree that it is not genuinely benefiting agency workers and that there is very limited evidence of agency workers ever receiving true pay and assignments. The noble Lord, Lord McNicol, and others asked us to move faster on this. We think that April 2020 is about right, because businesses need time to change, so we will stick to that date next year.
My noble friend Lady Gardner asked a question I think she has asked before—not, on this occasion, about letting of domestic property—about agency workers and whether they are paid the minimum wage between assignments. My noble friend will remember that I dealt with this in answer to a Question not so long ago. I am trying to remember whose Question it was. The principal problem here is one of enforcement. As I said then, we are quite clear about where the law is. They should be paid and it is a matter of making sure the law is enforced. I am grateful to my noble friend for raising the issue.
The third regulation relates to key facts. Matthew Taylor identified paid transparency as a particular concern, and we believe that greater transparency over pay will help agency workers make better-informed decisions about what contract to accept. The easily understandable key information document will ensure that agency workers have greater clarity over their pay before deciding whether to sign on with an employment business. As the noble Lord, Lord McNicol, made clear, it is important that we get this right and we will work with businesses and other stakeholders to produce guidance on the format for that key information document. We intend that businesses should be able to present the information they are required to give their workers in the most effective way possible, providing the appropriate clarity.
I think that I have covered most of the points that I said I would write to the noble Baroness, Lady Burt, about. I will make sure that a copy of my letter goes to the noble Lord, Lord McNicol, and I will place a copy in the Library. I think I have dealt with all the questions.