Select Committee on Education and Employment Minutes of Evidence

Examination of Witnesses (Questions 40 - 59)



  40. That is a point which has frequently been made within this Committee and with which we have an enormous amount of sympathy. You do not have the resources to employ a human resources director. Somebody is doing everything in a small business.
  (Mr Bartley) It is normally me.

Mr Twigg

  41. I think that is right, to re-affirm what Derek has just said. The Committee would be very sympathetic to concerns of small businesses about complexity, lack of explanation, all of those sorts of things. Returning to the previous line of questioning, you would obviously accept that there has to be some sort of a legal framework and what we are talking about, as Susan said, is the balance and how we strike the right balance. Are you able to tell us what the CBI itself is doing to inform its members, perhaps particularly the smaller enterprises, about some of these issues so that we don to get some of the problems that we have just had outlined to us?
  (Ms Anderson) We have two roles. We have a role in terms of telling our members about the legislative rights and then we have a role in helping the spread of good and best practice. I must say that we would like all employers to be members of the CBI. Unfortunately, many millions of them are not, so primarily some of these things have to come through government in terms of information about new legislation and how things work. In terms of spreading good practice and best practice, we do have a very active role and we are working with the TUC at ways of improving productivity. We are looking at training but one of the things that we are looking at is how we can best spread best practice and good practice. I think there is a role for us there and it is by showing what companies like GlaxoSmithKline are doing but it is also showing what the smaller firms can achieve. Small firms may not have policies that are written down in handbooks but none the less they have very flexible working patterns which they do to accommodate individuals, and they can often say, "I took on two part-timers", or "I enabled this person to work compressed working hours, and actually I got a very highly productive employee. The productivity of those two individuals was greater than the productivity of one individual", so they can go out and spread those good messages. We also have to say, however, with our lobbying hat on, that there are limits.

  42. What is your assessment of the DfEE's work-life balance fund and what difference that has made?
  (Ms Anderson) I think these initiatives are helpful. Smaller firms sometimes do not know where to turn. They want to do something. They might be interested in introducing some form of flexibility but they do not know where to go to get advice. For example,, they might want to move to annualised hours. That is a very productive way of working. They want to speak to other employers that have introduced it, they want to think about some of the issues in terms of changing people's contracts. There is a role that the Government can play in terms of pump priming by introducing schemes which can help employers pay for consultancy, for example, and get a bit of advice. These are positive ways that the Government should be acting and they should be pursuing that route rather than the legislative route.
  (Mr Bartley) I think there is work being done as we sit here over where small businesses go for assistance. The CBI is one port of call. Employers' associations, Citizens Advice Bureaux, Learning and Skills Councils are others. I suppose the largest single group is colleagues or family where you go home of an evening and say in conversation over dinner or over the television, "I have got this problem. What do I do about it?", or, "This has cropped up today". The Government does have a lot of grants, a lot of ways in which small businesses can go and get assistance. Without denigrating any of them, from a small business point of view there are almost too many. If you want an electrician and you pick up the Yellow Pages you are actually going to get confused because there are 14 pages of electrician and you do not know which one is the best for what you want to do. Sometimes the structure that is put in place mainly by different departments of state are confusing to small businessmen. It would help if there was a single point of reference. I think the Small Business Service and the Learning and Skills Councils are a move towards that. There are at least two points of contact to deal with there. Small businessmen and women need help. The jury is still out as to where best that help can be obtained, and obtained in a way that is useful for the small business rather than from the provider of the help. There are many organisations out there who will send you a consultant and the consultant will make you fill in an eight-page form to explain the business to the consultant. The consultant will go away and come back with a response that is actually what the consultant can deliver rather than what the business needs to be assisted with. We need to get away from that culture and any help in that direction would be gratefully received.

  43. Can I take us back to the legal framework? I think you have been pretty clear but I want to be absolutely clear about your position. Is the CBI's view an absolute objection to the notion of a right to working reduced hours or is it about the particular scheme that has been put forward at this stage? Is there anything that would be acceptable?
  (Ms Anderson) What we are saying is that in our experience employers are prepared to give consideration to a request for part time work. They will do that, but I think it is an absolute. I think Rob and Simon have some very interesting things to tell you in terms of the practicalities sometimes where you can grant those requests and when you cannot. We do not want to introduce legislation in this area. We have seen an increasing litigation culture in the United Kingdom. We do not want to add to that. Minimum rights, fine. This is taking us way beyond the minimum rights threshold. It is taking us into how work is organised. There are many instances where it is just not practical either because it is health and safety considerations or the way businesses are run, in Simon's case, or in Rob's case there are circumstances where, because of shift patterns or whatever, you just cannot accommodate those requests. Seventy per cent of women already return, when they return from maternity leave, on a part time basis and that is because employers are willing to be flexible where they can be, but we cannot create an expectation that these sorts of requests are always going to be granted.

  44. The Government has defined the harm test as "undue disruption to business". Would that not cover the points that you have just mentioned?
  (Mr Collinge) I think the difficulty is how that is applied. If we have to go to a tribunal every time to resolve that, it is a very lengthy and expensive process. Essentially there is no way of resolving it outside fairly low level legislation. Even if you have a robust case before a tribunal you are talking about £10,000 and 18 months' delay to get it resolved at the moment. It is not a way to run a business, even a large business, to have that uncertainty over you for those lengths of time. Although one has to say that against the profits of GSK £10,000 is not a huge sum, it is still a fairly substantial sum to resolve a minor issue in the scale of things. Encouraging an environment where there is flexibility between employers and employees to resolve the issues I really do think is the way forward. I give examples of the sorts of jobs where it would be very difficult, in production areas, for example, where a line has to be manned and if it is not fully manned then the whole thing does not work. You have to be fairly robust in these areas. There are jobs when you deal with customers when clearly you have to be available when the customer wants to see you, not when you want to go to work yourself, even in a very large organisation. Although we bend over backwards to try and accommodate people who want to work in a different pattern, they themselves might have to take up a different role in the organisation or be prepared to work on a different site or show some flexibility themselves in order that we can help them. Once you get in "the right environment" then it becomes a lot more difficult to reach that sort of consensus. Our other concern is rights relative to other folks who are working for us. We are trying to work in an environment where we are supporting a wide range of family needs. There could be 200 employees in a department. One has a problem with elder care; one has a problem with child care. How do I prioritise the two? At the moment I try and work with them, I try and come up with a solution that is best for everybody. If one of those two has the right and the other does not, because the parental care has the right, the elder care does not, then it becomes more difficult for the employer to facilitate a solution to the problem with the workforce as a team to come up with something that is going to meet everybody's needs. I do not think the solution to that is to carry it forward so you have heaps of rights for almost everything you can think of. It is for people to get real and work together to make these things happen. From the statistics that Susan has given you the majority of women who come back are coming back part time. It does seem to be working very successfully in the current environment. There are some employers who do not do things right, but is that a reason for making it extremely difficult for the majority of good employers to carry out family friendly policies in a wider sense?

  45. You talk about bending over backwards and being a positive employer in this field, would you be able to give any rough figure for how often you have to turn people down who want these reduced hours?
  (Mr Collinge) I have not got statistics here.

  46. Roughly? Half and half?
  (Mr Collinge) On office sites, I would say almost never. On sites where shift patterns are operated, there might be more occasions when we have to do that if employees are not willing to be flexible. One thing we would try to offer is other sorts of work. I think it would be very unusual, would be my position, but I would be happy to do the research on that and get back to you with an answer.

  47. That would be helpful.
  (Mr Collinge) I might be shocked and horrified that this number is much bigger than I thought, and will go and do something about it if it is. I think we will come up with a good answer.

  48. If that is the answer, is there such a big worry about cases going to tribunals and the litigation culture, if you are already providing that and there are very few cases where you have had to turn it down?
  (Mr Collinge) In the current environment where it is one of negotiation and flexibility by both parties, it is possibly easier to reach a resolution on these difficulties in a way which both sides can live with, even if not ideal for both sides. When one party to the negotiation has a 100 per cent right to demand what they want and the other party has to concede or go to a tribunal, it is a very different framework in which to reach agreement. I am suggesting that in a voluntary framework we can reach agreement in the overwhelming majority of cases, I suspect well over 90 per cent, in fact I suspect well over 95 per cent but I will prove that if I can. Employees are not always good employees. There are employees who are not trying to get the best for the business. There are circumstances in which you can get this difficulty.

  49. I do not think any of us would dispute that. You quote 95 per cent of cases, in the example Richard gave earlier it would be a very different statistic and I think that is where the expectation of legal framework comes from.
  (Mr Collinge) I think that comes to the balance issue. How much damage do you do to a large framework which is working successfully in order to clear up a small tail? Is there a huge tail out there? Is there a real need for it? Years ago, pension schemes used to happily transfer money between themselves, you bring in legislation obligating transfers and now almost no transfers take place because of all the legislation that is around it. So it is possible to almost kill the goose that is laying the golden egg. That is my fear in this, in order to deal with a few difficult employers, you make life so difficult for the good employers who really want this to work, because they see the good business sense in this, and you should be supporting those people, not making life tougher for them.
  (Mr Bartley) From the small business perspective, I strongly believe that the person who knows what is most harmful for their business is actually the owner or runner of the small business rather than necessarily the employee. I would speculate that the employer understands much of what the employee wishes to do on leave or flexible working or whatever as well as about running their own business. I am not sure it is the same the other way round in a lot of businesses. It is very strange therefore to give the person or side who has less knowledge the right to determine what the outcome of the discussion is going to be. Can I also give you an example or two of where the return to part-time work would not suit us a small business? I run an electrical installation business, we wire places, we wire committee rooms of the House of Commons and the Palace of Westminster, for instance. We employ apprentices. If an apprentice on a one pair job is working with an electrician, who may be female, who is able to work part-time and we are working in this room, if the electrician is able to leave at lunch-time or is not in on Thursdays, the apprentice cannot work by themselves. In the industry there are agreements with the unions that pair working is the rule. So there are examples where it might discriminate against the training of younger people if the more senior people—and let's face it, most of the apprentices are 16, 17, 18 and the electricians are 20, 21, 22 and upwards—can work part-time. Using the same example, if you have a six-foot lighting fitting, even if you have two electricians, you need one at each end with a hand holding the screwdriver to do it up, and you cannot do that if only one of them is there. So there are cases and there are many more. A single person working with electricity is dangerous. There are health and safety considerations. You cannot have flexibility where somebody comes back at the end of the day and works for two hours on a building site after everybody else has gone home because they are working flexible hours. There was an Astrix and Cleopatra cartoon book which I remember from my youth where they have banks of slaves—let's call them employees—pulling large lumps of stone towards a pyramid to build it, and the next cartoon is one individual trying to pull this block of stone instead of 50 because he is doing overtime. Sometimes it does not work when one person is there, sometimes you need a team all pulling at the same time.

  50. And you do not think the harm test, the undue disruption to business test, would cover that? You would still end up stuck in litigation?
  (Mr Bartley) It might do but it would be very difficult for the employer to say categorically it is going to because I suspect that if that was the case then the employee in the culture we now have with the ability to go to industrial tribunal, the ability of no win, no fee cases, would win. I think so much of the balance has been pushed the other side that most employers would be very afraid of saying no on the harm test.


  51. I do not think the people who are outside who might read the transcript of what is being said would forgive us if we let you get away with the view that most employers are all sweetness and light, negotiating in an atmosphere of equality with their employees, always to the mutual satisfaction of both sides. Many times employees are in a take-it-or-leave-it situation. Would you deny that?
  (Ms Anderson) I would deny that it is most employees who are in a take-it-or-leave-it situation. You were talking earlier with the trade unions about geographical issues where you have skill shortages. If you have got an area where you have virtual full employment, and there are many parts of the UK now where we have that situation, you cannot say to your employees, "Take it or leave it", you have to ensure they want to be there. How do you ensure that? By giving them a decent package. The idea that most employees are used and abused is not actually the case and statistics actually show it. Most women are very interested in part-time work when they are coming back after maternity leave and 70 per cent are returning on a part-time basis. The idea that somehow they get abused and do not return to their jobs is a nonsense. We were looking at the statistics this afternoon and 92 per cent of the women who return after the birth of their child return to the same occupation, irrespective of what sort of employer they are working for. It may not necessarily be the same employer but many of them return to the same employer because they are a good employer. Some of them move on to different jobs. 5 per cent of them do experience a little downward mobility but, not surprisingly, 2 per cent when they return from maternity leave actually got a better job. So I think I do dispute the vast majority of UK employees are being used and abused. Certainly we have seen an increase in rights for them, and I think we are getting the balance about right. If we go back to what I said in my introductory remarks, in the UK we have a good story to tell, we have the second highest incidence of part-time work. We have tele working, we have term time working. When I talk to my counterparts in the European federations they are sometimes surprised because they perceive us as a bastion of the used and abused and throw-away-employee society. When it comes to flexible labour markets, flexibility which suits employee and employer, we have a very good story to tell.

  Chairman: Okay. Thank you for that.

Mr Allan

  52. I have got quite depressed during the last exchanges about the potential for partnership working. There does seem to be still this huge suspicion coming out of this between employee and employer. Surely if you had some legal framework for the employee to be able to seek flexible hours and they did not have a leg to stand on and they were to cause business harm, when they went to their trade union their trade union would advise them. If there was agreement, everyone would be agreed, and the employers and the trade unions would be giving the same message to the employees as to when they can or cannot press for it. Surely not all the 54 per cent we heard about, where people would turn it down, or the 30 per cent who felt they had to leave their job, would be going to tribunals, only those who deserved to would be going to tribunals, and those who were being abused would have some recourse.
  (Ms Anderson) I think the survey you are referring to there is the ESC survey, a survey of people who phoned up their help lines because they were people who had a problem. They are not representative of the population, they are representative of the very small minority of employees who do run into problems, and they have rights, they can take their cases to tribunals. The idea somehow there are all these down-trodden people who do not approach their citizens advice bureau or their trade union is a nonsense, they have rights and they exercise them. Rightly, the vast majority of these cases are cases which the employers deserve to lose because they did not have a leg to stand on. But our concern is the increase in the weak and vexatious cases and once you enter into this sort of territory, when it is not a relatively cut-and-dried situation—was there unfair dismissal or not—there is the potential for employment tribunals to say, "What are the business circumstances of the employer? I think actually it be would perfectly reasonable to rearrange the shift patterns. Why should this employer expect to open his shop at 9 o'clock, the employee wants to come in at 9.30, I am sorry you will have to open at 9.30." Employment tribunals are not experts in running businesses, employers are experts in running businesses, the employment tribunal service is there and it is being rightly used but we do not want to see a massive expansion of the sort of cases which go to it.

  53. What hope do you have to offer the employee who is in a disadvantaged situation? We have heard employers are experts are running businesses but sometimes employees are as well, and sometimes employees have a better idea than their employers, their employers are unimaginative and not prepared to do anything in a very unreasonable manner. I have had people who have said, "My employer will allow me the morning off to go and see my wife in hospital if she has her baby by Tuesday, but if she has it after Tuesday we have an order coming in and I will not be able to take the time off." That is an employer who cannot be bothered to find somebody to replace that worker while they are off if it is past that particular date, it is not that they could not do it, it was too much hassle for them. That sadly is the case. It might be a minority but what hope do you have to offer the employee in that situation if there is no legal remedy?
  (Ms Anderson) In that situation the Government will be introducing, has introduced, parental leave and we will have paid parental leave around the time of the birth. Not every employer, to be honest, has welcomed those provisions, it is not a problem for the larger firms but it is for smaller firms. The Government has acted in these areas and this is about minimum rights. It is quite cut-and-dried, you are having a baby, you cannot abuse it, you cannot pretend you are having a baby, it is easy enough to police, the baby is coming on such-and-such a day or around that time, the employers can plan for it. These are areas where you can have minimum rights, but part-time working is a very different area.

  54. So if we have two employees working for a firm both of whom have skills, both of whom say, "We would like to job share because of family responsibilities", there is no reason why they should not job share, there is no reason why the employer should not recruit somebody to fill the second post, there is not a demonstrable problem, but the employer just does not want to do that, under those circumstances is it reasonable the employee should have some ability to say they insist, or do they have to leave that job and look for a job elsewhere where they can get part-time work?
  (Ms Anderson) It is a difficult issue but I go back to the point we made, employers will consider it. I think the situation you are describing is very unlikely to happen. What we tend to get is the counter-argument, "Yes, we would be interested if employees come to us, if they can put together a job share, we would be delighted." Often it provides the employer with two employees, highly motivated, they can cover for sickness absence, they can have them overlapping, it can be a great idea but the problem sometimes is you cannot put people together. If one person decides to leave or get promoted, then you are into difficulties. So employers are often very open to those ideas. There will always be, to be honest, the back woodsmen who are a little slow in coming to the party, but is legislation the right way to persuade them? Would you not be a lot better off showing them what can be done, getting them talking to other employers who manage to make it work rather than saying, "You must do it"? I think the best way of doing it is to persuade them of the economic case and the business case rather than say, "We are going to impose the straitjacket of legislation."

  55. Can I move on to the issue of long hours? Do you have any experience of people being unreasonably asked to work long hours? I am not just talking about part-time work now, it is more in the other direction. Rightly or wrongly, employees feel the pressure to work additional hours or their position would be under threat either per se or in terms of promotion.
  (Ms Anderson) You have to look at the workforce. You cannot necessarily categorise. What our members tell us is when it comes to blue collar workers it is the employees who do not want to give up the right to overtime; they see it as a right to overtime. Often it is the employer who says, "We have an overtime culture here, it is not productive, the employees are spinning out the work because they want to get into time and a half and overtime", and it is actually often the employer who says, "I want to move to annualised hours" and the employees who are saying, "No, sorry, overtime is a right for us." That often happens with blue collar workers. When we come to the white collar workers there are issues around long hours working. I think all employers would expect, if there was a particular need, their managerial and professional staff to come in and meet the need that is there, but you cannot force people to do that. We have the Working Time Directive, people cannot be forced to work long hours above 48 hours unless they want to. Part of the problem is that employees are their own worst enemies. They think sometimes they are going to get promotion, and there is a culture of presenteeism, sometimes employers have to send people home because people do get wrapped up in their jobs and many people enjoy coming to work. I am sure many of us do! There are differences. Overtime culture is not a good thing but it is often the employees who want to do it. Even in managerial and professional posts, yes, people are working long hours but many employers recognise it is not productive to work long hours over a long period. The individuals themselves do not benefit from that.
  (Mr Collinge) Within our company the only pressure we had when the Working Time Directive came in was pressure that we would not apply it. Certainly in our factories the trade unions representing the employees were most concerned there would be a reduction in hours and hence their income. That was the only visible reaction we got. In a business like ours when a lot of people are working on intellectual projects which they find very challenging—people ranging from research scientists and development people to marketing and managing people—they have a genuine commitment to the success of the project they are working on and how do you work out when a research scientist stops working? He keeps on thinking at home, even in the bath, so measuring hours in many jobs in our business is extremely difficult because people in one sense are working 24 hours a day. They wake up in the middle of the night with a bright idea, they write it down—are they working? So the pressure has not been from employees to do less. I agree with Susan, we have to be careful as employers and we are encouraging people to go home in the evening. There is a department near my own where the manager goes round every Friday at 5.15 and throws them out. These issues have to be addressed by employees who have to understand there is no penalty for going home early, and we try to go out of our way to emphasise that.
  (Mr Bartley) There is an example which goes back a few years. You will know that the Clapham Rail disaster was caused by an electrician working on a signal or a junction box and he had been working continually for day after day, week after week, month after month. Being in the same industry, after that happened we decided as a company we would restrict overtime at weekends so that in any four week period somebody had to have two consecutive days or three single days off, relatively straightforward from a health and safety point of view and also from a production point of view. The biggest grumbles we got about it were relating to the removal of their right, if they wanted to, to carry on working overtime on Saturdays and Sundays. Can I also tell you that the people who grumbled most were the people who never worked overtime in the first place! Those people who worked overtime, enjoyed the overtime, understood the value of it because they realised when they got tired they were less productive, on Monday mornings they did not start with a fresh spring in their step if they had not been off on the Saturday and Sunday. In the construction industry overtime is almost regarded as a right. In this time of skill shortages in London, if we want employees to work, people will come to us and say, "I will not come and work for you for 7½ hours a day, 37½ hours a week, what I want is 10 hours. I am prepared to work 7½ and be paid 10 hours but I am also prepared to work 10 hours." After you have got up and got to work in London on the transport system, people are prepared and want to work those extra hours rather than us having to force them or even wanting to force them. It is non-productive forcing overtime.

  56. Moving on to the issue of home working and tele working, despite all the best efforts of some leading telecoms providers to prevent the roll-out of new technology, we do now have at least a reasonable network which allows quite a few people to tele work and remote work. Do you think this is moving on? Do you think employers are being imaginative enough in using it? Do you think it can bring significant benefits in terms of a whole range of issues but specifically the issue of work-life balance?
  (Ms Anderson) I think it is a very welcome development. It is welcome because it is a bit like part-time working, it is a win-win situation. It can sometimes be over-played certainly but the advance of ICT has meant that people's lives have been made much easier. For employees it means they can work at home, they have saved the daily grind into London. That may be on a regular basis or a casual basis. Employees are happy, happy employees mean productive employees. There are some employers who have said, "We have saved a bit of office space by having people working from home." That said, I do not think we are ever going to, certainly not in the short-term, move to an environment where everybody is working from home. What we are finding is that the impact of new technology has meant individuals can have a day here, a day there, instead of having to stay at the office they can go home and resume in the evening, which is particularly attractive to working parents who can go and pick their kids up and start again in the evening. It has certainly been growing, it is something that often is employee-driven rather than employer-driven. We have trade unions in Europe seeking to restrict the use of tele working because they see it as a form of abuse, but in the UK a large amount of tele working has been to meet employees' needs, and certainly there are advantages for employers, particularly in London with the price of office space.

  57. Do you think employers are ready to make the cultural shift away from counting an employee's value, particularly at the lower end of the professional scale, from the number of hours present in the work place to what they actually achieve? It is a lot harder to drag that down to what is achieved where traditionally it has been about the number of hours you are at the work place.
  (Mr Collinge) The sort of work which can be done at home with tele working is fairly measurable, so I would say there are easy ways round that. To answer the wider question, tele working brings in an interesting new opportunity and flexibility. It is not the answer to everything but that is about as far as it goes. There are a couple of dangers attached to it; one a danger and one more a consequence. People actually go to work for some social opportunity as well. It gets you out of the home, it gets you meeting a different group of people. Many people do enjoy going to work because they are meeting their friends. Sitting at home in a lonely environment is not always good for people. It can lead to some very stressful situations because you do not have anybody to share a difficulty with, so it is not ideal for all sorts of work but it is another opportunity. My bigger concern goes back to your first question which was the hours question. I, myself, refuse to deal with e-mails at home on the grounds that I suspect if I once turn that thing on I will do another six hours a night. It is an opportunity for employees to take their work home and continue to do it in a way where it cannot be supervised. How many hours are people actually working for us gets tougher to manage in these sort of environments and we, as employers, need to start addressing that. There is a danger that the long hours culture gets even worse if tele working is encouraged too much.

  58. So if you take your work computer home in the evening it should be there to play games with the kids!
  (Mr Collinge) Yes, I am all for that! I play the games myself because I do not have any kids!
  (Mr Bartley) There are some sectors, of course, which are not ever going to be involved with tele working. If the driver of the underground train which brings you to work in the morning is actually doing it at home, then the train will not get very far!

Mr Twigg

  59. They are tomorrow!
  (Mr Collinge) It is tough to make penicillin at home and it is probably quite dangerous to inject yourself with it afterwards!

  Chairman: Whisky is a different matter!

  Mr Allan: That is illegal!

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