Employment Rights Bill

Committee (1st Day) (Continued)

21:01:00

Amendment 14

Moved by

14: Clause 1, page 4, line 2, at end insert— “(8A) Subsection (8B) applies where—(a) a worker’s contract or arrangement requires an employer to make work available to a worker for a number of hours, and(b) some or all of those hours may be made available either on days falling within a reference period or on days falling within another period (all of the days on which the hours may be so made available together forming “the longer period”).In subsection (8B), “the unassigned hours” are the hours that may be made available at any time during the longer period as described in paragraph (b).(8B) Where this subsection applies—(a) subsection (3)(a)(ii) is to apply as if the contract or arrangement required the employer to make work available to the worker during the reference period for the apportioned number of the unassigned hours (in addition to any other hours that the employer is required to make available to the worker during the reference period);(b) “the apportioned number” of the unassigned hours is—Image-1where—H is the number of the unassigned hoursD1 is the number of days in the reference period that fall within the longer periodD2 is the number of days in the longer period.(8C) Where there is more than one longer period in relation to the same reference period, subsection (8B) is to be applied separately in relation to each longer period.”Member's explanatory statement This amendment makes provision, for the purposes of proposed section 27BA(3)(a)(ii) of the Employment Rights Act 1996, about the calculation of the number of hours for which an employer is required to make work available to a worker during a reference period in cases where hours might be made available in that period or another period.

My Lords, I beg to move government Amendment 14 and shall speak also to government Amendments 23, 25, 26, 30, 34, 35, 39, 40, 41 and 45 to 61. I reassure the Committee that these are technical amendments brought about as a result of very welcome scrutiny of the Bill. The amendments incorporate technical and clarificatory adjustments, close loopholes to safeguard policy functionality, and resolve uncertainties to ensure the measures are comprehensive and will accurately deliver the policy intent set out in the plan to make work pay, delivery of which was a clear manifesto commitment of this Government. They do not introduce new policy; they simply ensure the Bill works to achieve its intended aims effectively. Making technical amendments to the Bill in this way is an entirely appropriate and ordinary part of making good legislation. On Amendment 14, as the Bill is drafted, workers on annualised contracts—or other contracts where the hours are guaranteed over a period longer than the reference period—that have a total number of guaranteed hours of work but little detail as to their allocation may fall out of the scope of the right to guaranteed hours. This is because the worker would be on neither a zero-hours contract nor a contract guaranteeing a certain number of hours over the reference period. It is the case even if they would otherwise be eligible. Workers may therefore fall out of the scope even if they are guaranteed only a very small number of hours over a year. On the other hand, workers on annualised hours contracts who have a sense of when their hours will be worked may fall into scope of the right to guaranteed hours if they have a certain number of hours guaranteed during the reference period. This is not our policy intention—workers on annualised contracts may experience one-sided flexibility in the same way as those on weekly or monthly contracts. As the Bill is drafted, there may also be a perverse incentive for employers to place workers on to annualised hours contracts guaranteeing a very small number of hours with no indication as to when they should be worked to avoid being in scope of the right to guaranteed hours. Amendment 14 will ensure that the policy works as intended and expected and will act as an anti-avoidance measure. It makes provision to determine what the minimum guaranteed hours are in the relevant reference period by providing a calculation method to find the apportioned number of any unassigned hours under the contract for that reference period. Amendments 49 to 57 add grounds on which a dismissal would be automatically unfair. A dismissal would be automatically unfair where an employee was dismissed for bringing a complaint to an employment tribunal that they were wrongly issued a notice by their employer stating that their guaranteed hours offer had been withdrawn or for alleging the existence of any circumstance which would constitute a ground for bringing such proceedings. Adding these grounds aligns with the approach taken where a worker is unfairly dismissed for taking a claim to an employment tribunal on other grounds relating to the right to guaranteed hours. All employees deserve protection from unfair dismissal. These amendments will ensure that employees who make a claim in an employment tribunal on any of the grounds related to the right to guaranteed hours will be protected from being dismissed as a result of making such a claim. Consequential amendments have been tabled to amend the right not to suffer a detriment for workers and agency workers to ensure consistency when referring to the proceedings that can be brought or referred to and that could lead to that detriment. Amendments 25, 26, 34 and 35 relate to the movement of shifts for the purposes of payment for workers for shift movement at short notice. These amendments make technical changes to the definition of the “movement” of a shift. This is to provide for situations where a shift is split in two or more parts, or where a part of a shift is moved with the result that the shift ends later than it otherwise would have but the start time remains the same. For example, a worker could have a 9 am to 5 pm shift changed at short notice to 9 am to 12 pm and 4 pm to 9 pm. In this case, it is right that a payment for a short-notice change is granted given that the worker may have already incurred costs for plans associated with the shift, such as childcare or other care arrangements. Amendments 30 and 40 make technical changes relating to payments for shifts that have been cancelled, moved or curtailed at short notice where an exception applies. Where an exception applies—meaning that the employer is not required to make a payment for that changed or cancelled shift—the employer must provide the worker with a notice so they are aware that they will not receive a short-notice payment and why. The notice must be given to the worker within a certain amount of time, which will be specified in regulations. This period may be shorter than the deadline for making payment, which will also be specified in regulations. Under the current drafting, even if they make the payment despite an exception applying, the employer still has to provide an exception notice if they make the payment after the deadline for giving a notice. The amendments change this so that employers do not need to provide a notice if they pay the worker within the deadline for making the payment. The same applies in respect of work-finding agencies and agency workers. Amendment 23 aligns the wording used in Clauses 2 and 3. To be eligible for the right to short-notice payment, workers must be on a contract of a specified description, if they are not on a zero-hours contract or arrangement. This is referred to in Clause 2 as a contract “that requires the employer to make some work available to the worker”. We are adding the same description into Clause 3 to ensure that this is included in the provision. Amendment 39 is a minor and technical amendment that corrects a cross-reference to align paragraph 23(5) of new Schedule A1 to the Employment Rights Act 1996 with new Section 27BR(3) of the same Act, both inserted by this Bill. This concerns the duty to give notice where an exception applies that means that no payment is due for a shift that has been moved, cancelled or curtailed at short notice. The amendment ensures that, for both directly engaged workers and agency workers, only the requirement to give an explanation in the notice of exception does not require the disclosure of information where that would contravene data protection legislation or breach a duty of confidentiality, or where the information is commercially sensitive. Amendment 45 signposts at Clause 6 the definition of “work-finding agency” in Clause 4. This minor and technical amendment adds the definition of “work-finding agency” to the interpretation section in new Section 27BZ2, with other definitions used for that part. It does this by referring to its meaning in new Section 27BV of Part 2A of the Employment Rights Act 1996. Amendments 46, 58 and 61 amend Schedule 6 to the Insolvency Act 1986, Schedule 3 to the Bankruptcy (Scotland) Act 2016 and Section 184 of the Employment Rights Act 1996 so that employees can receive short notice payments in the same circumstances as they receive other wages on the insolvency of their employer. When an employer goes insolvent, outstanding wages due to employees are treated as preferential debts—or preferred debts in Scotland. Amendments 58 and 61 ensure that outstanding short notice payments are also treated as preferential or preferred debts. Amendment 46 enables employees to obtain payment of unpaid short notice payments from the Secretary of State in the same circumstances as they receive other wages under the scheme created by Part 12 of the Employment Rights Act 1996. Amendment 59 amends Section 202 of the Employment Rights Act 1996 to ensure that information does not have to be provided and will not be disclosed to a tribunal or court under the zero-hours provisions where a Minister is of the opinion that such disclosure would be contrary to the interests of national security. Amendment 60 amends Section 206 of the Employment Rights Act 1996 to ensure that, in the event of a worker’s death or the employer’s death—or the death of another respondent in the case of agency workers—tribunal proceedings under the zero-hours provisions can still be instituted, continued or defended as appropriate by a personal representative of the deceased. Amendments 41 and 47 amend Section 12A of the Employment Tribunals Act 1996 and the provisions on short notice payments for agency workers in order to enable employment tribunals to impose financial penalties on all types of respondents in claims brought under the zero-hours provisions where there are aggravating circumstances. Amendment 48 amends Section 16 of the Employment Tribunals Act 1996 to include payments for cancelled, moved or curtailed shifts in scope. This ensures that regulations can be made to enable benefits to be recouped where a worker has not received such a payment and so has had to claim benefits, and the tribunal has then ordered the employer or work-finding agency to make the payment. The amendment also ensures that regulations can be made so that benefits can be recovered from all types of respondents in claims brought under the zero-hours provisions—for example, in respect of the payments that are compensation for loss of wages. These amendments seek to prevent workers receiving double award where their rights have been breached and ensure that employers and other respondents do not benefit from breaching these rights. I therefore beg to move these amendments.

My Lords, I rise to speak to this group of government amendments. I am surprised that the Minister made the assertion that they are all technical. Amendment 53, for example, extends the types of dismissal that will be regarded as “automatically unfair”. That is not a technical amendment; it is an extension of what is already considered potentially controversial in being added to the Bill in this way. There are other amendments in this group that really concern me in their drafting. Multiple amendments leave out several lines of the previous Bill presented to this House and the other House and then leave the employment tribunal and the employer to get into the detail. For example, Amendment 52 states: “It is immaterial … whether or not the proceedings were, or would have been, well-founded provided that the agency worker acted in good faith in bringing the proceedings or alleging the existence of the circumstance”. I ask the Minister, what has changed? Why do we now have an employment tribunal group which has to decide whether the actor worked in good faith? They will not necessarily need to know what the Government proposed before, but it would be very helpful to understand why significant parts of the Bill on the operation of the employment tribunal are being changed at this stage.

21:15:00

I appreciate that there are fewer people in the House at this point and we have already discussed important matters today, but in my government career, one of the most informative roles I had was, as Deputy Leader of the House of Commons, being on the Cabinet committee that looks into legislation, the Parliamentary Business and Legislation Committee. By the way, the Leader of the House of Lords and the Government Chief Whip in the House of Lords are on that committee. The purpose of the committee is to go through legislation, particularly the Leader of the House of Lords and, at the other end, the Lord Privy Seal. It is designed because those offices of state are there not only to represent the Government in Parliament but to represent Parliament in government. I have already made the point that we have moved from an initial 149 pages of legislation to, now, 299 pages of legislation—never mind all the amendments coming in—and not lots of scrutiny at the other end; I am not criticising the Commons because, unfortunately, it has evolved over quite a few decades that a lot of the work gets left to this Chamber. But even then, we see how that process has evolved as strongly flawed, because with the Bill having doubled in size from when it was originally presented, the statements made about whether it contravenes human rights and the impact assessments are all from October. Very minor changes were made in March. Nothing else has had an impact assessment. Even then, the impact assessments are almost irrelevant, because they more or less say, “Well, we don’t really know how to do this; we’ll get into that decision when we get into regulations, or we consult”.

This is really bad. I cannot believe that a Cabinet committee has allowed this Bill to evolve in the way that it has, apart from the message given by the Deputy Prime Minister—by the way, it is an office I have held myself, admittedly for a lot shorter time than the current Deputy Prime Minister. Nevertheless, it should matter to the Deputy Prime Minister and it should matter to the Cabinet committee how they are drafting legislation. For a start, we are already deleting stuff that has been put in at various stages along the way in order to put in, I suggest, even more nebulous words. That really concerns me about this approach.

There is a lot in this Bill that is genuinely novel. The Minister has referred to that, and I understand her point when she has been answering, “Some of this is novel, so we can’t put it on the face of the Bill”. But that is why there is anxiety. There is already anxiety from outside, never mind from inside this House. For what it is worth, it is not being directed personally at the Ministers in this Chamber—I have been in their shoes myself before, so I appreciate their position—but the Government need to think carefully. I understand that there are even more amendments coming—which they are bound to be, because this Bill has been written in haste. I can imagine that OPC has been working assiduously, as have been the policy officials and others, to try to address some of the challenges that we face.

However, I want to put on record how frustrated I am. I have not been a servant of this House for long, but I am trying to be an active participant and am frustrated on the House’s behalf at how it feels it is being treated at the moment. Candidly, the Government do not need to restore the trust of Members in my party, but they do need to restore the trust of businesses and put in place updated impact assessments so that they know what we are facing into. It is critical to their mission of growth, having spent an election doing X, Y and Z, and keeping a number of their promises, that, if they really want to see this country prosper, they need to keep business engaged and involved—and not just with the token consultations that we have. I have seen them on some of the amendments that we have done—perhaps not the ones we are specifically talking to now—where they are saying, “Yeah, we’ve heard the consultation, but we don’t agree, stuff it”, even though two-thirds of businesses are saying, “We think this is really bad”.

In the spirit, though, I would appreciate an answer, to get an understanding of Amendment 53, on why these measures are deemed to be added to the unfair dismissal.

My Lords, as everyone knows, I am very new to this piece of legislation. I do not know whether “shambles” is a parliamentary term, but 27 amendments at this point, after going through the other House and now coming to this House, is completely unacceptable. A Bill needs to be developed virtually to its finish point before it enters the legislative process, not be continuously revived as it travels on through. That is not the way these Houses are meant to operate. I was struggling to follow the Minister as he described this, not because he is unclear but because he is tackling such complexity within these regulations. I am going to go back and say to the team that they will have to read Hansard multiple times and then keep double-checking the amendments to have a feel for what is going on here. These are not just technical; it is reasonably obvious that they are not. Will we at the very least get a detailed code of conduct? People outside these Houses will have to apply all of this and will need real clarity. I work with employment tribunals, admittedly on whistleblowing issues, and I am incredibly conscious that this is the kind of thing that leads to them being flooded with even more cases—and employment tribunals are a part of the court system that does not have that capacity. I ask that the Government rethink whether there are areas where the Bill is inappropriate or undeveloped and somehow find a way to bring all those issues very rapidly to the attention of parliamentarians. This is no way to carry out legislation, to ask us to apply sensible scrutiny when it is impossible to get to the bottom and the root of what is being presented to us.

My Lords, I agree with the noble Baroness, Lady Kramer, and my noble friend Lady Coffey. It is frankly not acceptable for the Government at this stage in a Bill to lay this many amendments of this magnitude to the policy in the phase of the Bill as it is travelling through the upper House. These measures will receive no scrutiny from the elected House. It is frankly not constitutionally proper to use this method. It should be used for only minor and technical amendments, and by no measure can these proposals be put into that category. The Government should be very ashamed about this. Frankly, the correct way of proceeding would be to withdraw the Bill and start again, and to lay this entire Bill back before the Commons so that it can be properly scrutinised in accordance with our conventional norms.

My Lords, I thank the Minister for his detailed introduction to the amendments in this group. As he was speaking, I thought that he had inadvertently highlighted the mind-boggling complexity of what employers are up against when dealing with this Bill. I did hear all the words but, to paraphrase a famous comedian, I was not entirely sure that they were necessarily in the right order. As my noble friends Lady Coffey and Lord Murray, and the noble Baroness, Lady Kramer, have pointed out, the Government tabled these 27 amendments only a few days ago. Perhaps they are simply technical amendments, but I am afraid I am inclined to agree with the other speakers that they do not appear to be so. I will just pick a few items at random from the Minister’s speech. If amendments involve national security, insolvency and the death of a claimant at an employment tribunal, these are matters of substance; they are not technical at all. This is not the way to do business in this House. The last-minute approach is symptomatic of a much deeper issue, which is the lack of care and due diligence when it comes to this Bill. It is rushed, it is poorly thought-through, it has been inadequately consulted on, and it is one that these Benches will scrutinise to the fullest possible extent. We have to ask why the Government have still not tabled any amendments to address the concerns of businesses regarding the changes to zero-hours contracts in this Bill. These are not niche or minor concerns; they go to the heart of how businesses—especially, as we have been discussing all evening, small and seasonal employers—operate. We have heard already some of the germs of the future scrutiny that these amendments can expect to receive in depth. We will not oppose them today, but we of course reserve the right to revisit them at a later stage, when we have had time to digest them and read the Minister’s comments in much more detail. On a personal note, I read Amendment 14 with mounting horror. It induced a minor heart flutter because it reawakened memories of a particularly unsuccessful algebra exam I took when I was about 16. I would be very grateful if we could have a minor health warning on any future amendments of that type.

I thank all the noble Lords for their contributions. Some noble Lords raised concerns about the number of amendments tabled by the Government, and I would like to reassure the Committee that these really are technical amendments, brought about as a result of welcome scrutiny of the Bill. They are entirely appropriate and an ordinary part of making good legislation. I remind noble Lords that we had tons of government amendments when we debated the Procurement Bill recently, so this is not unusual. I will answer some specific points raised by noble Lords. The noble Baroness, Lady Coffey, asked about Amendment 53. This is one of a number of technical amendments designed to ensure that the Bill operates as it was intended to operate. As an example of how technical they are, Amendment 53 seeks to amend new Section 104BA because we realised that it was not clear that Section 104 of the Employment Rights Act 1996 already ensured that dismissal in such cases was automatically unfair. The noble Lord, Lord Murray, mentioned scrutiny. There will be technical regulations tabled at a later stage, or during the course of this legislation, and the House will have every opportunity to scrutinise these through the affirmative procedure. There will be time for noble Lords to scrutinise delegated powers and this Bill.

The Minister appears to be saying that the House’s deficit in scrutiny can be made up by the fact that we can scrutinise secondary legislation. As the Minister will be well aware, the last time this House negatived a statutory instrument was, I think, in the 1970s. It is an all or nothing: either we agree to a statutory instrument or we do not; we cannot amend a statutory instrument. The Minister will surely agree that, realistically, this is not an avenue for scrutiny.

I take the noble Lord’s point, but I am sure he will appreciate that, when he was a Minister, a number of statutory instruments were placed before the House and we had every chance to scrutinise them. There is a question over whether noble Lords want to table whatever options are open to them, but the whole objective is that the House will be able to scrutinise regulations as well. I refer to the point about algebra from the noble Lord, Lord Sharpe. I had to read three times the formula in Amendment 14 to understand what it actually means. I will try to explain in plain English what we are trying to achieve with H times D1 over D2. To qualify for guaranteed hours, a worker’s existing guaranteed hours need to be lower than the threshold and the worker needs to work more than the guaranteed hours in the reference period. That condition does not work for someone whose guaranteed hours may or may not fall entirely in the reference period, such as someone on an annualised-hours contract with no clarity on when those hours fall.

21:30:00

This amendment takes the worker’s guaranteed hours and calculates them pro rata to the length of the reference period. That number of apportioned hours is used as a notional number of guaranteed hours during the reference period. In that way, these workers can be treated on a fair basis with workers whose guaranteed hours clearly fall within a reference period. Therefore, it is clear whether the worker works in excess of their reference period hours and whether they fall within the scope of the right to guaranteed hours. I hope that is clear; I will get my officials to write to noble Lords.

These amendments incorporate technical and clarificatory adjustments to ensure that the measures on zero-hours contracts in the Bill are comprehensive and will accurately deliver the policy intent set out in Labour’s Plan to Make Work Pay, the delivery of which was a clear manifesto commitment of this Government.

Before the Minister sits down, could he answer my question on whether or not there will be a code of practice? I can see many businesses struggling their way through all this stuff. I think his attempt to clarify the complex algorithm illustrates the need for such a code very powerfully.

I thank the noble Baroness for her question, which I have written down. In response to an earlier grouping, my noble friend the Minister said that the Government would publish detailed guidance on the government website, which I hope will give some clarity on that.

Amendment 14 agreed.

Amendment 15 not moved.

Amendment 16

Moved by

16: Clause 1, page 4, line 9, at end insert— “(10A) In making regulations relating to the duty to offer guaranteed hours under this section, the Secretary of State must have regard to the nature of the work and operational characteristics of different sectors, including but not limited to sectors with irregular or seasonal work patterns.(10B) Specifically, in sectors where work schedules are inherently variable and unpredictable, such as the theatre sector, the Secretary of State shall consider the concept of Available Hours, which reflects the actual hours an employer can reasonably offer workers based on the known operational needs of the sector, without imposing undue rigidity on employers or creating unfair advantage or disadvantage for workers.(10C) The Secretary of State must by regulations issue specific guidance on how employers in sectors with variable work patterns may meet their obligations to offer guaranteed hours, while taking into account the fluctuating nature of work, the distribution of available hours, and the need for flexibility to accommodate the unique operational demands of the sector.”Member's explanatory statement This amendment ensures the Secretary of State considers sector-specific work patterns, like those in the theatre industry, when regulating guaranteed hours.

My Lords, in moving Amendment 16 in my name, I offer my apologies for not being able to be present at Second Reading, although I followed the debate that your Lordships had then, as I have today’s debate, particularly the earlier group on zero-hours contracts. I also offer my thanks to the Society of London Theatre and UK Theatre, which represent some 500 of the UK’s leading theatre producers, venue owners, managers and performing arts centres, and with which I had the honour of working closely when I was Arts Minister, for raising the issue that underlies my amendment and for discussing it with me in some detail. I stress that those organisations welcome many of the measures in this Bill and share the Government’s ambition to eliminate exploitative practices, but they have flagged their concerns with the provisions relating to zero-hours contracts, which are integral to operations in theatre and other live performing arts, and which presently operate in a way that delivers fairness, flexibility and inclusion for the sector and the brilliant, creative people who sustain it. I am sure, by the end of proceedings on the Bill, that the Minister will have tired of special pleading on behalf of every sector of the economy, but theatres operate under a unique set of pressures, including the stark new pressures that I saw them confront during my time in government—from the bleak months of Covid-19 to the rising costs of energy and materials following the inflationary effects of that pandemic and of the illegal invasion of Ukraine. The effects of that turbulence—rising costs and falling real-terms income—mean that theatres must work harder than ever before to balance the necessity of making a profit with long-term investment and their sincere commitment to delivering social good. The arts hold a mirror up to our society and help us to understand the human condition—a value that cannot simply be measured in ticket sales and bottom lines, important though those are. In particular, as major employers of a casual workforce, theatres have to manage highly irregular and unpredictable staffing needs while supporting and valuing their workers, without whom theatre simply could not happen. As one of the organisations which sprang up during the pandemic put it in its very well-chosen name, freelancers make theatre work. The proposals in the Bill as currently drafted, regarding the right to guaranteed hours for casual workers, risk upsetting the delicate equilibrium by which the theatre sector operates, balancing commercial viability with social value, long-term investment with short-term realities, and the demands of an irregular calendar with a commitment to fairness for its workforce. Although I am glad to see that the Government have amended the Bill in the ways we have just debated in the previous group and will debate when we look at further government amendments which follow—particularly, in this instance, to allow collective agreements to override the new statutory right—the mechanism set out in new Section 27BW does not fully solve the problem and is unlikely in practice to provide the safeguards that this cherished sector needs. Theatre’s operating model is inherently shaped by irregular programming, seasonal variation and periods of closure. Those aspects are baked into the way that theatre works and are part of what makes it so dynamic and diverse. Notwithstanding the well-known mantra that the show must go on, theatres do not operate continuously. Even long-running productions experience periods of closure, known as dark weeks, when no performances can be staged and no box office income is generated. The opening of a major new production might require up to 12 weeks to load in sets and equipment and to undergo technical rehearsals. These help productions to dazzle us with ever-more ambitious technical wizardry, and are rightly the stuff of separate award categories for lighting, sound, set design and more. Short, planned closures, typically for at least a fortnight each year, are needed to carry out essential inspections and to ensure that buildings remain safe and compliant for those who enjoy visiting them. That is particularly important in heritage venues, which receive heavy footfall but only modest and irregular investment. I pay tribute to the work of the Theatres Trust and others who champion the value and plight of historic theatres, concert halls and other cultural buildings across the country, and acknowledge the pressing capital needs of our cultural estate, particularly at a time when many of the boilers, roofs and windows that were funded by the first wave of National Lottery funding some quarter of a century ago are all reaching or long passing the natural time for an upgrade. Sometimes, of course, these periods of closure are needed without much warning at all, as I saw during my time as Minister, when I had occasion to learn, along with most of the rest of the country, what reinforced autoclaved aerated concrete was. The noble Baroness, Lady Thornton, from the Benches opposite, and I were both at a very enjoyable performance of “The Witches” at the National Theatre, which had to be halted midway because of a breakdown of the Olivier’s revolving stage. I am very pleased that the last Conservative Budget helped the theatre to fix that before its 60th birthday year was over. The sad fact is that performances can be cancelled at short notice for a variety of reasons, most of which are beyond the control of the theatre operator and staff. I have mentioned two egregious examples already—the pandemic and the need for health and safety in the face of things such as RAAC—but many other external challenges beset theatres from time to time: severe weather causing leaks or other damage which requires repairs, external events such as power cuts, or industrial grievances from other sectors having a knock-on effect. I am sure it is not betraying any state secrets to say that one of the few COBRA meetings I was called to attend as Arts Minister was to discuss the effects of the train strikes on our theatres and other parts of our night-time economy, which lost audiences and vital income as a result. Of course, there are those unforeseen incidents which come like the theatrical deus ex machina. Last year, for example, a touring production of “Chitty Chitty Bang Bang” was brought to a halt when the eponymous vehicle, “our fine four-fendered friend”, was damaged during the get-out at one of its venues. The repairs to the vehicle took several weeks, leading to the cancellation of all performances during that period. That meant that other venues which had booked the production received no income and were unable to programme another show at such short notice. During times such as these, there is, quite simply and unavoidably, no front-of-house work available. Guaranteeing hours during periods like that, as the Bill requires, would mean paying staff when no work exists, placing enormous pressure on theatres’ and other arts venues’ already very tight operating budgets. That is the reason for my Amendment 16. The proposed right to guaranteed hours assumes that organisations operate with consistent demand and regular staffing patterns. That is not the case in theatres or, as we heard in previous debates, in many other businesses and organisations. Theatres’ scheduling requirements and therefore their staffing needs shift weekly—sometimes daily. Guaranteeing fixed hours based on short-term patterns of work, as the Bill proposes, would introduce a level of rigidity that threatens their entire staffing model. The aim of my Amendment 16 is to urge the Government to acknowledge the unique dynamics of theatre and of the arts sector more broadly, and to adopt a more realistic framework, which will be beneficial to many sectors beyond theatre and the performing arts. UK Theatre has suggested the concept of “available hours”, which I have reflected in my Amendment 16, referring to the actual hours that an employer can collectively offer workers in a given period. This approach would allow for the equitable allocation of work while remaining responsive to the volatile nature of theatre operations. It would also reflect the desires of the staff who value the flexibility that theatre work currently affords them. Many of those who work front of house do so to support other careers or responsibilities; as noble Lords noted in our debates in relation to other sectors, people have many family or caring burdens. But theatres particularly attract front-of-house staff who want a flexible job, perhaps because they are creative freelancers balancing work with auditions, because they are students are still learning their trade, or because they are retirees and theatre lovers seeking fulfilling part-time work or seeking sociable evening, but not night-time, working hours—rather unlike your Lordships’ House. The theatre sector’s sincere understanding of its workforce is rooted in over a century of constructive and collaborative industrial relations with the trade unions in the sector, whose names are almost as well-known as those of some of their famous members: Equity, BECTU, the Musicians’ Union and the Writers’ Guild of Great Britain. Their symbiotic relationships have produced agreements which are highly tailored to this unique sector. These strong union relationships and robust collective agreements already guarantee protections such as minimum calls, notice periods and compensation for cancelled shifts. The recent amendments to the Bill include a provision under new Section 27BW which allows certain rights, such as the proposed right to guaranteed hours, to be excluded through a relevant collective agreement. But such an agreement must explicitly exclude the statutory right and include clear replacement provisions. Retaining this flexibility would now depend on being able to negotiate its exclusion. Without that flexibility, the Bill before us risks creating structural unfairness, entrenching advantage for a small number of workers at the expense of wider opportunity, undermining long-standing and vitally cherished industrial relations, and damaging the ability of theatres to take creative risks, maintain their heritage buildings and serve the community. What is intended as a protection could in practice become a barrier to access and inclusion. I am sure that is not what the Government want to see, so I hope the Minister will agree to look at this carefully and to discuss it with me, with UK Theatre, the Society of London Theatre and many others from the world of the arts to make sure that the Bill delivers for those cherished sectors. I beg to move.

My Lords, this amendment points up the need for a nuanced approach tailored to industry requirements. This is the first particular instance we have in the Bill of its potential effect on the creative industries, which will crop up again—I assure the Minister—as the Bill progresses. I congratulate the noble Lord, Lord Parkinson of Whitley Bay, on introducing this amendment. I hope the Minister will look carefully at the SOLT/UK Theatre briefing, which is highly informative and measured and demonstrates well the wide degree of flexibility required for the employment of, for instance, front-of-house staff in theatres. We often take front-of-house staff in theatres and cinema workers for granted, but they are the backbone of these organisations. They could not run without them. In my experience, they are unfailingly polite and helpful and often highly knowledgeable. A fair number, as the noble Lord, Lord Parkinson, said, have jobs in other areas of the creative industries, which highlights the complexities of working relationships in this sector. The briefing from SOLT/UK Theatre is, of course, the view from the employers, and the solution has to have the support of all stakeholders, including the workers themselves. According to The Stage, “actor Nicola Hurst, who is also a duty manager … at Southwark Playhouse, said … she had turned down permanent contracts multiple times … as they could never offer her the flexibility she needed to pursue her creative work”. She speaks for many in this sector when she says: “I have colleagues and friends working at all levels in the theatre industry, from fringe to the West End, and for all of them, zero-hours contracts are essential to support themselves between creative jobs, and often, to bolster fees from a tragically underfunded sector”.

21:45:00

However, in the same breath, there is another view. Mention needs to be made of the upset caused to front-of-house staff by the cancellation of the Royal Exchange Theatre in Manchester’s production of “A Midsummer Night’s Dream” last autumn. It may have been an unusual and fraught event: nevertheless, one worker said that front-of-house workers who were not paid for that period were “disproportionately” impacted by the cancellation. So the number of hours that are expected to be worked over a period needs, at the very least, to form some kind of a benchmark if it is not to be addressed by compensation.

In its briefing on the Bill, BECTU states:

“The complex nature of employment and engagement relationships across the creative industries means that the impacts of the Bill on creative workers will differ widely. While many will benefit, the anomalous status of some creative workers could see them inadvertently pushed out of rights”.

BECTU specifically cites front-of-house theatre workers and cinema workers as potentially being pushed into self-employment—losing, of course, what rights they had previously. There is also the danger that jobs are lost because the workforce is rationalised, or in certain cases that this becomes another factor in an organisation’s collapse, with a loss of those job opportunities.

Much of this seems to be an unknown, which begs the need for a detailed impact assessment of the creative industries. My noble friend Lord Freyberg has put down an amendment to that effect that we will hear later in the Bill. Such an assessment should be a deep dive into the differing kinds of jobs and work status in this sector. The amendment from the noble Lord, Lord Parkinson, was introduced only on Friday, belying its considerable importance to the creative industries. I hope that he will bring it back on Report, because we need time to hear differing views from the full range of stakeholders on this issue.

My Lords, I was prepared to put my name to this amendment because I believe that the whole nature of the creative industries, and theatre and festivals in particular, depends on flexibility. Let me give noble Lords an example. When I joined the board of the Royal Opera House, there were in place at the time union restrictions which meant that several operas in the repertoire would go beyond them because they could not possibly fit into that time. The unions and management got together and worked out a flexibility that would allow operas—Wagner’s, for example—to go beyond the hours without penalising people. It is a give-and-take situation. The arts need the flexibility that the noble Lord, Lord Parkinson, is suggesting in his amendment, and I simply rise to endorse it.

My Lords, I am going to stick with being very brief. We have had three exceptionally powerful speeches. Amendment 16 is, in a sense, tackling a subset of a debate that this Committee has already had on Amendment 7 in the name of my noble and good friend Lord Goddard. I hope that the Government are beginning to accept that not all work comes in steady flows; it can have peaks and troughs and be disrupted by events way beyond anybody’s control. I hope that the Minister is going to take this away and work out how the current drafting needs to change in order to make the necessary allowances, whether it is for theatres, festivals, farmers or food and drink. A whole series of activities that experience those irregular patterns must be incorporated into this Bill.

My Lords, I agree with the noble Baroness, Lady Kramer, that we need to brief as we have debated this area already. But we do have a great debt of gratitude to my noble friend for bringing forward this amendment. He was, of course, a distinguished Minister for the arts. I do not think people have yet recognised the dangers of one size fits all. We are very grateful to the noble Earl, Lord Clancarty. I join with him in wanting a detailed impact assessment, particularly for the instance he gave of front-of-house workers. I do not believe that the effect on creative industries has been properly assessed so far as this Bill is concerned, and, as the noble Lord, Lord Berkeley of Knighton, said, there is a need for flexibility. The theatre industry has only just now recovered—or perhaps it has not yet recovered—from the effects of the Covid-19 pandemic. The last thing it needs now is to be hit by this crude instrument of a Bill, which makes no allowance for the unique nature of the work that it does, and the flexibility that is necessarily inherent in how it delivers for audiences. I really do want to hear from the Minister the extent to which theatres—the larger groups, such as ATG and Delfont Mackintosh, but also small and independent theatres—have been consulted. To what extent have they been consulted about the effects of this Bill? I will finish off with five questions for the Minister. First, does the Minister accept that the right to guaranteed hours as drafted risks reducing work opportunities for the very people it claims to support, such as students, carers, disabled workers, et cetera? Secondly, can the Minister explain how theatres and other seasonal or project-based employers are meant to reconcile guaranteed hours with programming closures, touring breaks or production gaps? Thirdly, what modelling have the Government done to assess the potential job losses or reduced shift allocations that could result from this policy, and will they please publish that modelling? Fourthly, why have the Government ignored the clear expert evidence submitted by the Society of London Theatre and UK Theatre to the Public Bill Committee? Finally, does the Minister seriously believe that this legislation embraces inclusion and opportunity for the creative sector, when the sector itself is warning that it will do precisely the opposite?

My Lords, I thank the noble Lord, Lord Parkinson, for tabling Amendment 16, which would require the Secretary of State to have regard to sector-specific work patterns when making regulations relating to the right to guaranteed hours. I am grateful to all noble Lords for their contributions and for highlighting the sometimes unique employment practices that occur in the creative sector and, in particular, the theatre sector. In response to the noble Lord, Lord Hunt, I would say that we have engaged extensively with the Society of London Theatre and are happy to carry on doing so. We appreciate that some sectors—including the theatre sector, which is highlighted in the noble Lord’s amendment—do have fluctuating demand across the year. This is a sector that I know all noble Lords recognise we need to support, for all the reasons that the noble Lord, Lord Parkinson, said, particularly for social value reasons. We therefore want to take note and make it right for the sector. I reassure the Committee that flexibility is already built into the Bill to address issues of seasonal demand. There are several ways under the Bill that an employer could approach that issue while upholding the new rights to guaranteed hours depending on the circumstances, particularly by using limited-term contracts where that is reasonable. Those who are offered guaranteed hours will be able to turn those down and remain on their current contract or arrangement if they wish. Furthermore, through the Bill we have also allowed for employees and unions to collectively agree to opt out of the zero-hours contract measures. Unions can make these deals based on their knowledge of the industry and with a holistic view on what is best for their workers. We will ensure that the needs of different sectors are considered when we come to design the regulations. We will continue to work in partnership with employers across the different sectors, their representatives, the recruitment sector and the trade unions to develop those detailed regulations, and we will provide clear guidance for both employers and workers in advance of implementing these measures. The amendment from the noble Lord, Lord Parkinson, had a new concept of available hours for sectors with varying seasonal demand. We would push back on that issue. It could risk creating a two-tier guaranteed-hours framework for workers in sectors with more or less seasonal fluctuation. We believe that the reference period provided for in the Bill will ensure that qualifying workers are offered guaranteed hours that reflect the hours that they have previously worked. I hope that, in that short contribution, I have been able to persuade the noble Lord that we are aware of the issues and are on the case. We feel that there is considerable flexibility in the Bill as it stands. We are happy to have further discussions. As we have heard from noble Lords, there are a range of issues and a range of options here, so there is not just one way of solving this problem. We are happy to get round the table and talk some more. We feel that, as the Bill is currently designed, it answers the concerns that are being raised with us, but we are happy to talk further. I therefore hope that, on that basis, the noble Lord will be prepared to withdraw his amendment.

The Minister talked about the reference period. SOLT would like to see a longer reference period because a year is much more of a real time length than 12 weeks. Is that something that the Government would consider at all?

We have previously had a debate on the nature of reference periods, and that is something that we are going to consult further upon. If we are going to have a discussion, let us have a discussion on that as well, and I will see if I can reassure noble Lords on that matter.

My Lords, I am grateful to the Minister, particularly for the willingness she has just indicated to continue discussions. SOLT and UK Theatre updated their briefing on the Bill in the light of the amendments that the Government have brought but they retain some concerns about the amendments in this area, so I am sure that they and others across the arts sector will be glad to continue to discuss it with the Government as they continue to write the Bill as it is before us. I am grateful to the noble Lords who have spoken, especially the noble Earl, Lord Clancarty, and the noble Lord, Lord Berkeley of Knighton, at this late hour; their championing of the arts knows no temporal limit. I am grateful to them for staying to express support for this amendment. I should say that I am much attracted to many of the amendments that the noble Earl, Lord Clancarty, and the noble Lord, Lord Freyberg, have tabled later in the Bill on the need to consider its differential impacts on certain sectors. I look forward to the debates we will have those. I am grateful too to my noble friend Lord Hunt of Wirral for his generous remarks. I am happy to say that the UK’s theatres have indeed bounced back well from the pandemic. Last year, more than 17 million theatregoers attended a show in the West End alone—an 11% increase on pre-pandemic levels. In fact, the West End outperformed the Premier League, attracting 2.5 million more attendees. As we have just finished a long Bill on football, perhaps we ought to spend a bit more time on the things that people go to in greater numbers. However, the sector remains precarious. As the noble Earl, Lord Clancarty, said, the people who are that smiling welcome at front of house are often taken for granted. During the pandemic, we saw how challenging it was for them, especially when enforcing some of the Covid restrictions. They deal with exuberant, sometimes well-oiled audiences, and during that time they had to explain to people why they had to sit two metres apart or wear face masks, or why the show had been cancelled or much delayed. They perform a vital role in welcoming people to theatrical productions, orchestral recitals and much more. As the noble Earl said, that relates just as much to cinemas and many other cultural venues. The UK Cinema Association has provided a helpful briefing on the Bill and its impacts on our cinemas. I am grateful to noble Lords who have taken part in this short but important prelude to the other debates that we will have on the creative industries and the cultural sector, and I am grateful to the Minister for her willingness to continue to discuss these matters with those organisations. On that basis, for now, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

House resumed.

House adjourned at 10.01 pm.