Examination of Witnesses (Questions 1
WEDNESDAY 2 MAY 2001
1. Ladies and gentlemen, thank you very much
indeed for coming and thank you in particular for the written
evidence that you have given us already. We are looking forward
to a very productive session indeed on a subject which seems to
be on everyone's lips at the moment and I hope we are going to
make some progress on it. Kay, do you want to make an initial
very brief statement or are you quite happy for us to open the
(Ms Carberry) May I just take the opportunity?
(Ms Carberry) Thank you for inviting us. If I could
take the opportunity to say how much the TUC welcomes what the
Government has already done for working parents: the National
Child Care Strategy, Parental Leave and so on. We were very pleased
to be involved in the way that we were with the consultation on
the Working Parents Green Paper. We very much welcome the initiatives
that the Government has already announced as a result of that
consultation. We are looking forward to what they are going to
be saying about the part of the Green Paper that they have not
yet commented on which is to do with flexible working. We hope
very much that when they do respond to that they take on board
the arguments we have made for working parents to have the new
right to alter their working hours.
3. Okay. Thank you. Can I just begin by asking
what evidence is there upon which to assess the current balance
achieved between work and other aspects of life by the majority
of the workforce? Once you have told me what evidence there is,
do you think the evidence is adequate?
(Ms Carberry) There have been a lot of surveys that
have been done by the Government and other organisations, including
employer organisations, to show that there is quite extensive
use of flexible working practices but at the same time there is
a huge pool of unmet need and I think that sums up the situation.
Trade unions tell the TUC that where there are flexible working
practices, where they have been able to negotiate different working
arrangements, that their members have found that very beneficial,
particularly where it has been based on an agreement where the
employer and the trade union have managed to get together and
to sort out specific solutions for the issues in their work places.
As far as we are concerned, we would like to see more of those
practices and particularly spread throughout different occupations
because we are finding that in several work places, because these
practices often rely on management discretion, they are not available
to all employees. They are often available to those employees
who the employer might regard as more difficult to replace if
they should leave, and more valuable to the employer. That is
essentially why we argue that there ought to be some legal right,
as it were to level the playing field, so that everybody will
be able to take advantage of those kinds of practices.
4. Okay. Thank you. I should give everyone an
equal opportunity to contribute but do not feel obliged to contribute
to every question otherwise we will eat up the 40 minutes or so
that we have got. To what extent do employers have a responsibility
to help employees achieve a balance? What percentage of employers
currently, would you say, are meeting that responsibility?
(Ms Carberry) Other people will come in for the remainder
of the questions.
(Ms Carberry) It is the TUC's view that just as employers
accept a responsibility to look after their employees' health
and safety or a responsibility not to discriminate against them
and treat them fairly in other ways that, equally, they should
be looking to take care of the balance between their working life
and their other responsibilities. It is very difficult to say
what percentage of employers do that because, as I said, although
there have been a large number of surveys, all that they show
is that many employers are putting in to place a number of different
practices and many employers are not, and even among those employers
who are introducing flexible working and part-time working or
job share or whatever it is not always applied consistently across
the organisation. It is not really possible to come back actually
with percentages in the way you request.
(Ms Holland) If I could just add that where we have
got good working relationships between the employer and the trade
union movement and we are operating in partnership on work-life
balance, we have got some very positive examples where it is not
just the employer's responsibility in looking after members of
staff, it is actually people together identifying how they can
better meet service, work more productively and at the same time
meet the unmet needs regarding child care and caring responsibilities.
We have got some positive examples where that has happened.
7. You are describing a joint responsibility
on behalf of negotiations?
(Ms Holland) In certain cases where that has been
possible it can be very positive, yes.
(Mr Gates) In terms of your actual question of employer's
responsibility, the employer's responsibility is not just a responsibility
to its employees in the way that Kay outlinedit clearly
is thatthere is a business responsibility as well. If you
have a workforce that clearly has concerns other than those at
work, if it has problems at home, the work-life balance is not
right, then they cannot be working effectively and efficiently
for you. That is an issue in terms of the business responsibility
to ensure that your employees have got that work-life balance
right, that they have not got other things on their mind that
are affecting their commitment to business and to their employment,
so the whole issue of that. The whole issue and responsibility
of ensuring you have got people who can give a commitment and
who can fit in with the business in terms of flexibility is an
employer's responsibility as much as an employee's responsibility
to see that his workforce is flexible enough to cope with both
its commitments to the employers and commitments to their own
work life and their home life.
9. Talking about an employer's responsibility,
who gives the employer that responsibility? Has Government said
that they have a responsibility? Has someone on behalf of society
said they have a responsibility? Do employers themselves admit
they have a responsibility? Or, is this just an ideal world that
we would like to see where employers admit they have a responsibility?
(Mr Gates) In terms of the employer responsibility
I was giving you the examples of, as opposed to the other ones
that Kay mentioned, which is a moral and good employer responsibility,
they have by virtue of the fact that they are responsible for
the business. This is a business case, they take responsibility
for running the business, managing the business and making the
business efficient and profitable, that is their responsibility
to their business. That responsibility is something that they
inherit when they inherit their responsible position within the
business, whether it is the owner, whether it is the managing
director, whether it is the chief executive. It is up to them
to ensure that they have got a workforce that has got that balance
right in order that they can give to the business enough to make
it efficient and productive. When you say who gives them the responsibility,
that is part of their job within the business.
10. It does not seem to be recognised all that
well, does it, because in the United Kingdom we are working far
longer hours than anybody else in Europe? Presumably European
business people think in the same way about effectiveness and
productivity being a product of balance and yet we arrive at very
(Mr Gates) I think you are right in the second part
of the question in terms of what percentage. As Lucy said we cannot
give you any statistics which give you percentages. All the relevant
information and feedback we get in terms of the working hours
of people in UK plc compared with other countries is far longer
which leads one to the conclusion, although there is no official
statistic, that we have not got that balance right.
11. Can I move on to the specific issue of working
hours. This was a key issue in the Government's Green Paper and
also in the TUC response. How important do you think the issue
of flexible working hours is for employees to achieve a suitable
work-life balance? Do you think it is the key issue or where does
it live in the spectrum of flexible working hours as such? Also,
do you feel it should be available for all employees or just employees
who have specific caring responsibilities, be they parents or
caring for their parents or anybody else?
(Ms Anderson) Perhaps I could come in on that. We
have said to the Government all along we do not feel it is necessarily
appropriate to prioritise. What is necessary is a package that
works to meet people's needs. In general terms this is also something
that there has been much debate about, the importance of this
agenda for women, and that is absolutely true. But it is also
a vital agenda for men too. Certainly going back to the issue
of what people want, and the unmet needs, the DfEE base line survey
showed men do not necessarily want to work part-time, that is
low part-time hours, but they do want to reduce their working
hours in almost the same numbers as women, so that is an important
point to bear in mind. Our top three priorities were flexible
working, paid parental leave, better parental leave scheme and
also better maternity pay, in no particular order. We also said
that in terms of the business benefits of flexible working, which
have been demonstrated in many, many surveys, it does not make
logical sense to restrict those only to working parents. Obviously
we think that as a social policy priority the Government has made
it very clear they want to help parents particularly but in terms
of the wider business benefits there are no particular justifications
for restricting it just to parents.
12. Can I follow up the issue of business benefits
which was also raised by Paul Gates earlier. This came up with
age discrimination. People say there is clearly a business benefit
in employers working in what will be perceived to be an enlightened
way and offering flexible working hours to everyone. Yet you favour
a statutory legal code for this as you do for age discrimination.
Why do we need a legal code if the business benefits are so clear?
Why are businesses not doing it anyway? Why is there not a market
driver to make businesses offer all their employees flexible working
(Ms Carberry) It is not the TUC saying that there
are business benefits, it is business itself which is saying that
there are business benefits and that has come out very strongly
in a number of the surveys that have been done. We have a group
of leading employers who have called themselves Employers For
Work-Life Balance who are actually articulating the business case
for changes in working practice, modernisation of working practice,
because it brings base line benefits to the business. The reason
why we argue that there needs to be a legal right for people to
alter their working hours takes me back to what I said at the
beginning which is that not all employers are as enlightened as
those employers and the employers who do provide different forms
of working for their employees. Of those employers that do provide
flexible working in its various forms, it is not always consistently
applied across the organisation. It is not seen as an employee's
right, it is seen as something that is given to employees at the
management's discretion and we do not see that as fundamentally
(Ms Holland) I was just going to give the example
of very poor practice which does happen where working hours are
introduced without considering the impact on the people who are
going to have to operate them. There was one work place, which
was roughly 50:50 men and women employed, and they changed the
working patterns and within a year nearly all the women had left.
They had not been made redundant or anything but it was just impossible
for them to carry on, voluntarily they had chosen to leave but
really they had been forced out by the change in working hours.
That was of no benefit for the employer for a whole range of reasons
because they had lost half their workforce effectively. I think
it is a requirement to consider the impact of the working hours
on people's lives for the best interests of the people concerned
but also of the service that is being run or the business that
is being run.
13. Just to play devil's advocate, will not
those employers who were so stupid as to bring in inflexible working
patterns and drive out half their workforce simply go under and
the enlightened employers beat them in the market place? Why does
the market not operate to achieve that result?
(Ms Holland) The fact is it does not. Unfortunately
what happensand I think there are possible legal cases
to take in that particular case I describedis you just
end up with poor working practices continuing and what we are
trying to do, I think, is to step outside of that. It is very
demoralising for the workforce that is left to find there is such
a big turnover and also that they can see that people's needs
are not considered at all in the way that the employment is operating.
If people need jobs then unfortunately they are often forced to
stay in things where they are unhappy and productivity and service
delivery is affected as a result.
(Mr Gates) I think you are right in the sense of the
question that they do not. One of the issues that the Treasury
inspired TUC/CBI review of productivity in the UK is tackling
is what are the barriers to that very issue. It is an issue, the
reasons for it are not identifiable. I come from the textile industry.
The textile industry has lost nearly 50 per cent of its employees
over the last five years yet there are still skill shortages in
the textile industry. The average age of the industry has gone
from the mid 30s to the upper 40s over that five year period and
Capit B, the independent training board in the textile industry,
has identified a lack of flexible practices and family friendly
conditions as being the biggest instrument to reducing the number
of young people entering into the industry.
14. That is helpful.
(Ms Anderson) Just to add to that. Funnily enough,
the Institute of Directors, who have been the most vocal in opposing
a lot of these types of rights and further progress in this area,
produced a report, their Skill Shortage Report 2000, which
actually stated that one in five of their members surveyed said
that not offering attractive terms and conditions other than pay
was one of the key reasons for skill shortages. They actually
realise this but they are still not necessarily doing it. The
legal framework we are arguing for is one, as we explained in
our response, not about primarily litigation, it is about encouraging
and supporting agreement and thereby acting as a lever to good
practice. Obviously there would be objective justification involved
where employers could show that genuinely this was not possible,
it was not in the interests of the business. We are not saying
that is not acceptable, we are saying that is a perfectly acceptable
way to behave. The other important thing to bear in mind is the
Equal Opportunities Commission Opinion Polling evidence shows
an overwhelming public support for a legal right as opposed to
just leaving it up to individual employers.
15. Can I pursue that again about how this would
work, the legal right, and in a sense push you in the other direction
as to whether the gentle approach that is suggested will be workable?
We have had some evidence from the Equal Opportunities Commission
saying that they conducted a survey in 1998 into the enquiry of
members of the public contacting their advice services about reducing
working hours. In 54 per cent of cases the employee's request
to reduce their hours was refused. Where the request was refused
34 per cent of respondents were dismissed, made redundant or forced
to resign, 25 per cent left employment for other reasons and 34
per cent lodged a complaint with an industrial tribunal. This
sounds like it would be an area, if those figures are correct,
where there is a potential for serious litigation. Are we not,
if we bring in a legal right for flexible working hours, actually
going to see quite a major area of conflict rather than an area
of gentle agreement between employers and employees?
(Ms Anderson) I think it is important to realise that
we have existing sex discrimination law which covers not usually
men but mostly women who can use that as a last resort, and that
sometimes happens. That is complicated. Employers do not know
often what it involves and it can lead to very difficult to interpret
case law. What we are saying is that it is in everybody's interests
to move to a new regime which will provide more legal certainty,
backed up ideally with a statutory code of practice like, for
example, the very popular code of practice on disability discrimination
which is liked by employers as well as by workers and unions.
What we are saying is that it is an opportunity to provide a new
statutory regime, intelligent regulation if you like, which benefits
16. That is helpful. Can I just ask about the
test that is applied? You mentioned this earlier. My understanding
was that the TUC was concerned about the test being applied as
undue disruption to business, so that may be too low a hurdle
if you like, too difficult for the employee to pass because the
employer can always argue that undue disruption to business could
take place. What would you put in its place?
(Ms Carberry) We were not arguing that the test should
not be undue disruption to business. It should not be simply the
employer's opinion that it is unduly disruptive. We would want
there to be some more objective test so that the employer would
need to demonstrate that to grant the request would be unduly
disruptive. We have not designed the test and we would hope that
once the Government has given a commitment to legislate to introduce
the new right we and employers' organisations would be able to
talk about the detail of what the test would constitute. We would
not be starting from scratch because we have got case law from
the European Court of Justice and domestic case law under the
Sex Discrimination Act which can give us some guidance, so we
have already got something to be working with. Essentially what
we argued in our response was that we did not want a test which
was a very low hurdle and relied simply on the employer saying,
"We do not think that this is going to work". We recognise
of course that employers have got a legitimate interest in this
whole area as much as employees have. We would expect the eventual
shape of any legislation to include safeguards for employers in
the way that we see in legislation that operates in other countries.
For example, we would need it to be specified that employees needed
to give a certain length of notice before they wanted to change
their working hours. We would like to see the principle established
now and discussion about the detail to happen later, but on the
basis that the Government has given that commitment.
17. The final question on this part is on the
distinction between parents and non-parents. This is something
referred to in the CBI response to the Green Paper and something
that has been referred to elsewhere, that there is the potential
for resentment if a package of rights over flexible working hours
etc accrues to parents which is not available to non-parents.
Are you concerned about that issue and do you have any solutions
to addressing the problem of those who are not parents having
a problem about their colleagues having much better conditions
(Ms Holland) I suppose the first thing to say is that
we have prioritised people with parental caring responsibilities
because they have the greatest need and they currently have a
very difficult and complicated life balancing all these different
responsibilities, but that is not to say that at some point we
would not be thinking that it would be important to look at flexibility
for other people at different times. There is already a right
under the Disability Discrimination Act for flexible working if
it is a reasonable adjustment to ensure that a disabled person
can be in work or stay in work. I do not hear anybody complaining
about that even though it does not apply to everybody because
they recognise there is a need there. Our experience is that people
do recognise that need. We have negotiated in some workplaces
on family friendly policies but we have taken a broad approach.
We have started with the priority areas of maternity and paternity
and parental leave, but we have then looked at other areas like
study leave or reducing working time when you are coming up to
retirement so that people can see over a period of time that there
is a general picture of looking at everybody's needs but starting
with the priority areas.
(Mr Gates) Our union did a lot of work in a submission
to the DTI on a programme called "Mothers in Manufacturing"
which resulted in visiting a lot of factories, a lot of workplaces,
to ascertain the views of people not only who were in that position
but also worked there. Maternity was the one area where very little
resentment was shown. Quite clearly there was resentment towards
people who did not turn in regularly on Mondays because they had
been in the pub all weekend and things like that, but maternity
was a position that was clearly understood. One significant point
here is that in small businesses in particular it was even more
understood. That is because if you have a factory or a business
of only nine or ten people they all felt part of an enlarged family
and they understood that people had worked with them for some
time and the baby was almost being born into the family. Quite
often in small businesses people come from the same family anyway
and feel very much part of that being an enlargement to the family,
so that reduces the resentment quite considerably as well in small
18. Can I move this on to the question of long
hours and overtime. As I understand it, on average those who work
beyond their standard or fixed hours do so for nine hours a week.
Could you say a little bit about what the impact of that is first
of all on the employers' effectiveness, company effectiveness
and performance, and then also on the employee in terms of their
private life but also in terms of their prospects within their
(Ms Anderson) Just on the overall statistics or comparisons
that might be made, the Netherlands and Germany, for example,
who have legislation on reducing working hours and also have lower
average working hours, have higher productivity than we do. I
know there are a lot of other issues for that so you cannot prove
it in a direct sense but it is certainly an indicator. Secondly,
employers' organisations' and personnel organisations' surveys
show the damage that long hours cause. For example, there was
a recent CIPD survey which showed clearly how much stress long
hours cause, the health problems that long hours cause and the
damage to family relationships. It is not very difficult then
to relate that to how somebody is performing in the workplace.
It is difficult to prove it in absolute terms but I think there
really is enough evidence out there.
(Ms Holland) I think we do have two extremes within
the workforce. We have on the one hand fathers working longer
hours than men without children and mothers working much shorter
hours than women without children. Those two extremes, if you
put them together and get a better approach which is about flexibility
that does not require a woman to become a part time worker for
ever and a man to be doing a huge amount of overtime for ever
and we look at a more equal way of approaching the workforce which
involves choice and flexibility, you can have a fairer way of
working. We cannot look at the long hours without looking at the
very short ones as well, and of course pay, because a lot of people
work those hours because the woman is earning so little or nothing.
(Mr Gates) Just to add to the business case in that,
particularly when you are working in the manufacturing industries
and industries that traditionally operate a payment by result
or even piecework system, there is a lot of evidence which has
been accumulated over the years to show that for people working
part time their performance levels are very high because the performance
by result system drives them harder to earn the money. The longer
the hours they work their performance dips off and a lot of statistics
have shown that over a number of years. There is a business argument
for reducing hours and introducing more flexible working arrangements
and working patterns.
(Ms Anderson) An Industrial Society report recently
called Desperately Seeking Flexibility also showed very
high ratings in terms of output and performance for managers who
were on flexible working contracts as opposed to other managers.
There is a whole range of evidence of that nature.
19. On the issue of overtime do you think that
the ability and willingness of an employee to work overtime is
ever a valid criterion for performance appraisal and promotion,
and have you got a picture of how common it is that it is used
in that way?
(Mr Gates) I have no experience of overtime working
being used as a performance criterion in appraisal terms. It is
not something I have ever come across.
(Ms Holland) Working long hours and being present
in the workplace for long periods of time if you do not have fixed
hours, then yes, that would be an unwritten criterion very often,
demonstrating commitment. I certainly have not seen it particularly
related to overtime.
(Ms Anderson) Also bear in mind that there is a lot
of evidence that there has been pressure to sign Working Time
Directive opt-out. Unions obviously have tried very hard to counteract
that. I think the T&G recently succeeded in getting a group
of pub landlords negotiating with the employer to make sure that
those working time opt-outs were scrapped. Obviously our experience
is a lot in unionised workplaces where there has been pressure
on that but we know that in non-unionised workplaces it is absolutely
rife. We hope in due course that Working Time Directive opt-out
will be scrapped and obviously that is our policy.