Select Committee on Education and Employment Minutes of Evidence


Examination of Witnesses (Questions 1 - 19)

WEDNESDAY 2 MAY 2001

MS KAY CARBERRY, MS LUCY ANDERSON, MS DIANA HOLLAND AND MR PAUL GATES

Chairman

  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 questioning?

  (Ms Carberry) May I just take the opportunity?

  2. Yes.
  (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.

  5. Yes.
  (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.

  6. Sure.
  (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.

  8. 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 outlined—it clearly is that—there 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 different solutions.
  (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.

Mr Allan

  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 hours?
  (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 fair.
  (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 happens—and I think there are possible legal cases to take in that particular case I described—is 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 everybody.

  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 than themselves?
  (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 businesses.

Mr Twigg

  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 employment?
  (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.


 
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