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Sunday Trading (London Olympic Games and Paralympic Games) Bill [HL]

My Lords, we had a very good Second Reading debate two days ago, so I was not intending to preface my remarks with an extended speech about the purposes of the Bill. However, I remind the Committee that the Bill is a time-limited and temporary measure to allow flexibility in trading hours on the eight Sundays that bracket and include the Olympic and Paralympic Games. This is a unique occasion for this country. We want to demonstrate that we are truly open, flexible and accommodating of all the athletes and visitors who will be in the country for the Games, and indeed that for all the millions of UK citizens who take advantage of the Games, watching on big screens and taking part in the other events around the country, we make the experience as good as it possibly can be. In achieving that, there may indeed be opportunities for economic benefit and for some people to earn extra money at a time when the economic conditions are not great. Therefore, this is a temporary Bill that is important to the overall Olympics and Paralympics experience. As I said on a number of occasions at Second Reading, not only is it temporary but it has an explicit sunset clause. If at any stage the Government were to come forward with a further measure on Sunday trading, which is not planned, then of course that would involve the full consultation, impact assessments and all the other things that permanent measures have. With that brief preface, I shall talk to Amendment 1. This amendment will insert a new clause into the Bill to deal with concerns that shop workers who want to opt out of Sunday shop-working in time for the start of the suspension period, by exercising their opt-out right under Part 4 of the Employment Rights Act 1996, may have to have given their opting-out notice prior to the Bill receiving Royal Assent. This is because the usual period for such opting-out notices is three months, and there will be a bit less than three months between Royal Assent in early May and the start of the suspension period on 22 July. The first question that might arise is: why is this being brought forward as an amendment rather than having been in the Bill in the first place? The reason is that we had initially believed that the amendment was not necessary, as we would expect shop workers who do not wish to work on a Sunday at all for religious reasons to have either already exercised their right to opt out or to have come to an arrangement with their employer. Furthermore, many employers require only a one-month notice period, whether in the terms of their employment contract or in the good practices that they adopt. At Second Reading I gave a number of examples of that from major retail groups. In fact—this is an important point for the Committee to understand—a one-month period is the default under the Employment Rights Act 1996 if an employer has not informed employees of their right to opt out of Sunday working. Therefore, the back-stop of a one-month opting-out period is there in the Act. Nevertheless, initially we had constructive discussions with the Opposition about the Bill. We would not have brought it forward under the fast-track procedure if we had not had indications and discussions with the Opposition on this issue. The amendment was tabled following a request from the Opposition, which we quite understood, to make it clear what the protections were and to put in another layer of protections. I am disappointed that, notwithstanding the opposition Front Bench making it clear at Second Reading that the Opposition would not oppose the Bill, further points have now come up which we will be debating this afternoon. In addition to the government amendment, as I already committed to the House at Second Reading in response to other good points that were raised by the Opposition, the Business Department will be putting out on its website full guidance notes if and when the Bill gets Royal Assent so that employers and employees will understand the full ramifications. This is not an easy area of law, so it was a helpful suggestion which we are committed to following up. In response to their concerns and those expressed by the Federation of Small Businesses, and indirectly by the Association of Convenience Stores, I have also committed that if the Government were to bring forward further measures on flexibility of trading hours on Sundays for large shops, the impact of this temporary measure would be taken into that assessment. Turning to the amendment, it is important to remember that shop workers already enjoy strong employment protections around Sunday working. Their rights specifically in relation to Sunday working are unique and are not shared by almost all other sectors of the working population who may be required to work on Sundays. To take one example that is close to the retail industry, workers in the catering industry are not protected and, of course, may well be asked to work extended hours around the Olympics, as they can be at other times. The rights in relation to Sunday working were put in place to give protection to those shop workers who did not wish to work on a Sunday as a matter of principle—for example, for religious reasons. As I have said, shop workers who do not wish to work on a Sunday at all for religious reasons may well have already either exercised their right to opt out or would have come to an arrangement with their employer. If their employer has not already brought to their attention the terms of the Act on their right to opt out, then indeed they have a fall-back period of one month. However, the Government have listened to the concerns and share the concern that some shop workers may wish to exercise their right to opt out of Sunday working during the suspension period, given the possibility of having to work longer or different hours, and will not have enough time after Royal Assent to give their employer the usual three months' notice in time for the start of the suspension period. For many workers in large retail groups, the notice period is only one month, and these employees will be totally unaffected by the amendment. We have met the trade unions, businesses and other interested parties to ensure that we are protecting the rights of shop workers to opt out of Sunday working in the least burdensome way possible, both for employees and employers. Subsection (1) of the proposed new clause has the effect of temporarily shortening the usual three-month notice period that applies in respect of opting-out notices given by shop workers to their employers. An opting-out notice is a written notice whereby the employee indicates to his or her employer that he or she objects to Sunday working. The effect of serving a notice is that following the notice period the employee can refuse to do shop work on Sundays and will be legally protected in that regard. It would be unfair dismissal to dismiss an opted-out shop worker because of their refusal. It may be relevant in that context to draw the Committee's attention to a piece of evidence in the equality assessment that was part of the assessment that we put out yesterday to help discussion of the Bill. It covered the number of cases around this issue that went to employment tribunals. Noble Lords may have seen that between 1997 and 2005, after the right was introduced, only 176 cases for unfair dismissal or detriment caused by refusing to work on a Sunday were brought before employment tribunals. Noble Lords may say that there are pressures on employees—the noble Lord, Lord Glasman, is nodding—and I appreciate that the number of cases that reach an employment tribunal will not fully reflect these pressures. However, if the Committee will hear me out, the relevant point is that in the latest year for which figures are available there were 218,000 employment tribunal cases, while over a number of years only 176 concerned detriment or unfair dismissal related to Sunday trading. We take the issue very seriously but we should put it into perspective—and of course we are talking here only about a subset of the retail sector, while the figures may have covered other shops as well. If the Committee will bear with me, I will go into some important technicalities about how the scheme will operate through the weeks in question. For opting-out notices given between 22 May and 9 July, the notice period will be shortened to two months. For opting-out notices given between Royal Assent in early May and 21 May, the notice period will be more than two months and will vary according to when the notice is given. The effect will be that the notice period will automatically end at the end of Saturday 21 July, just before the suspension period starts. That will ensure that a shop worker who serves an opting-out notice shortly after Royal Assent will not be opted out before the Sunday opening hours restrictions are lifted. Opting-out notices given after 9 July will not be affected by the amendment. The current and usual three-month notice period will apply as it would otherwise have done. This is because, even if the notice period were to be shortened to two months for such notices, they would still take effect only after the end of the suspension period on Sunday 9 September, by which time shops will have had to revert to current restricted Sunday opening hours. Therefore, there is no reason for the shorter two-month notice period to apply to notices given after 9 July. It will apply only in relation to shop workers who work in shops that are able to open for longer, earlier or later on Sundays as a result of the Bill. The Government do not see any reason to shorten the opting-out notice period for workers in shops that already have no restrictions on their Sunday opening hours. I recognise that some shop workers may be happy to continue working their usual Sunday hours during the suspension period but will not want to work longer or different hours. If their contract allows their employer to require them to work more hours on Sundays, such employees will have to use this opt-out right to opt out of Sunday working altogether if they wish to avoid any risk of being made to work longer or different hours. The amendment does not provide them with any new right to opt out during the suspension period of working additional or different hours from their current usual hours. We have considered this point carefully and such an amendment is likely to be complex to frame and would also go well beyond the rationale of the existing Sunday opt-out right; namely, to protect those who have a fundamental objection to Sunday working, as opposed merely to giving shop workers a choice about what Sunday hours they would prefer to work. Instead of opting out, such workers could seek to agree a variation to their contract with their employer to avoid having to work longer or different hours. In our discussions with businesses, we have been emphasising the need for them to treat their staff fairly during this temporary suspension. Indeed, it is important to remember during this debate that many of these issues will be resolved perfectly amicably between employers and employees without the need for reliance on the statutory protections. At Second Reading, I gave the example of one of our largest retail groups for which opting in on Sunday is entirely voluntary and which is already anticipating a very large take-up. The picture is very different according to the particular employment contracts of the large retail groups. Most of those we have heard about give considerably tighter protection in their contracts of employment or their working practices than the fallback in the Act. On top of that, we do not believe that any of these retail groups will want adverse publicity during the period of the Games, given the particular spotlight that will be on their behaviour, partly as a result of the very proper discussion in your Lordships' House. Subsection (2) of the new clause contains a consequential amendment only. As there might be some shop workers who wish to opt out only in relation to the suspension period, we have included a provision which would make it easier for them to opt back in at the end of the period. Subsection (3) allows the shop worker to include a statement in their opting-out notice which makes clear that they object to Sunday working only during the suspension period. If they include such a statement, they will be deemed to have served an opting-in notice at the end of the suspension period, although they would then still need to reach an express agreement with their employer to do Sunday shop work. We think that this will be beneficial for shop workers who want to opt out of Sunday working only for the duration of the suspension period and for their employers. Shop workers will not have to give their employer a separate opting-in notice not long after giving an opting-out notice and it may help employers to plan ahead if they know that an opted-out worker wishes to opt back in after 9 September. The other government amendments in this group are technical amendments, although I am happy to explain them in more detail if noble Lords would find that helpful. Finally, the issues that I have explained in relation to the government amendments are very much interlinked with the amendments that I am sure the noble Lord, Lord Davies of Oldham, will speak to shortly, although if he wants not to move them, that would be fine. However, I will hold back my remarks that relate to both the government amendments and the other amendments we may go on to discuss until a little later in this discussion. I beg to move. Amendments 1A to 1D (to Amendment 1) not moved.