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Viscount Bridgeman: I am the third speaker from this side to feel that this clause does not give protection in a difficult case. Why do we not follow the more usual procedure in the Data Protection Act of the data being produced by the employer? The employer will receive notice. What will he do? In many cases he will have to filter information which is confidential to himself and to which the employee is not entitled. He will have to sift that information from the rest. As to the production of copies, why can they not be produced to the employee as in the Data Protection Act?

I share the feelings of my noble friend Lady O'Cathain that the presence of a helper is slightly intimidatory, and that could be the case under this clause. I am worried that the production notice is a do-it-yourself warrant. There is no recourse to industrial tribunals in this clause. It gives the employee the right effectively to write his own warrant and go in. That also ought to be tightened up.

Viscount Thurso: I listened with great interest to the argument, which was not one that I anticipated. Having looked at the group of amendments, I thought that there would be a debate between the two Dispatch Boxes. However, having listened to the comments of noble Lords on the Conservative Benches, I must say that as an employer I do not see the problem that is being put forward. To draw a comparison between a production notice and a search warrant is stretching things a little too far.

Perhaps I may refer the Committee to subsection (7), which states:


If that provision relates to a search warrant there is something a little odd. The employer is telling the employee after having received a notice where the employee can receive it. I believe that the drafting is not as weak as has been made out and therefore do not wish to support the amendments.

Lord Falconer of Thoroton: If I believed that the clause legitimately gave rise to the concerns expressed by the noble Viscount, Lord Bridgeman, or the noble Baroness, Lady O'Cathain, I would be equally concerned. However, I genuinely believe that the clause does not give rise to such concerns.

Perhaps I may deal with the specific points that have been made. Both speeches referred to the document as being a "search warrant". What I regard as the essence of objectionability about a search warrant, like an Anton Piller order referred to by the noble Baroness, Lady Miller, is that it effectively prevents the owner, renter, or occupier of the property entering and looking at his records. There is no element of that in this case.

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Where a production notice is produced by the employee, the employer tells the employee where the employee can look at the records. It is the employer's choice, so long as he is reasonable, to decide. It does not have to be at the premises; he can choose somewhere else for the employee to look at the records. I draw the Committee's attention to subsection (8), which states:


    "The place at which the relevant records are produced must be... the worker's place of work; or ... any other place at which it is reasonable, in all the circumstances, for the worker to attend to inspect the relevant records; or ... such other place as maybe agreed".

Therefore, if the employer has a good case for saying that it should not be the place of work, he can say, "This is a reasonable place for you to come". He has 14 days in which to ensure that the employee sees only his own records and the appropriate records.

If the employer were minded to disobey the law there is nothing the employee can do except make a complaint to the employment tribunal. The noble Viscount, Lord Bridgeman, said that he saw no reference to an employment tribunal in Clause 10. That is because it is in Clause 11. The noble Viscount, Lord Bridgeman, said that it was intimidatory to allow an employee to bring a companion with him. Think how intimidatory it might be for an employee to be told by his personnel officer, "Here are your records. You sort out whether you have been paid the national minimum wage". I can see that there may be cases in which it might be difficult, but surely a balance must be struck to make the provision work properly.

I would fully appreciate the concerns if they were justified, but I respectfully submit to the noble Viscount and the noble Baroness, who made good speeches outlining their concerns, that if they look at the provisions they will see that they are properly balanced. They do not constitute a search warrant. They do not allow someone to go mad with someone else's records. However, they represent a sensible means of trying to make the Bill enforceable in a way that does not involve too many lawyers or the employee being easily fobbed off by the employer. And there will be employers who wish to try to deprive employees of their right to the national minimum wage.

I earnestly ask the noble Baroness to reconsider the points that she has raised. We have thought about them genuinely and sought to reach a balance.

Baroness Miller of Hendon: I readily accept that the Minister does not have the concerns that I believe he ought to have. I also accept that if he did have such concerns he would deal with them as I have suggested. Therefore, I do not suggest that the Minister does not believe that what he is saying is correct.

I should like to move on and repeat what the noble and learned Lord said to me. He imagines that in most cases, those things will be dealt with by a copy of the records. That may well be so; but it may well not be so. There is no provision in Clause 10 that suggests that that is the way to deal with the matter.

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I shall certainly read carefully what the Minister said. But at this stage I should indicate to him that, while I shall withdraw my amendment, I am not particularly satisfied with his answer. He has tried very hard to be helpful but I am not sure I agree with what he said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 70 to 75 not moved.]

9.15 p.m.

Viscount Thurso moved Amendment No. 76:


Page 8, line 19, at end insert ("during the paid contractual working hours of the employee").

The noble Viscount said: In moving this amendment, I shall speak also to Amendment No. 87. Having listened to the previous debate, which ran for some 45 hard minutes, and was quite fascinating, I am now approaching this amendment from a diametrically opposite point of view. It reflects a general concern that, to a certain extent, employers have the upper hand. I seek to make sure that employees are properly protected and have sufficient access.

I deal first with Amendment No. 76. In my mind, for reasons which will become plain in a moment, I have nicknamed this the "night porter" amendment, and I shall explain that to the Committee as I go along.

Clause 10 generally provides a worker with the right to see records and sets out the manner in which and the places at which those records may be produced, specifically through the production notice. Subsections (7), (8) and (9) deal with the how, where and when of that. Subsection (9) in particular deals with when those records should be produced.

This amendment seeks to add to the burden on employers by providing that the information should be delivered during the paid contractual working hours of the employee. I remind the Committee that I am an employer and I feel slightly schizophrenic because I am never sure whether I am looking at this matter from my point of view or that of my workers. However, I am trying to look at situations when what I do as an employer, my actions, may make life difficult for my employees.

I then came up with the example of the night porter at Champneys. Let us take him as an example. He begins work at 11 p.m. and finishes work at 8 a.m. the following morning. Those are his contracted hours. If that employee lives 45 minutes away--that is not unreasonable because it takes one into north London--it is quite reasonable to imagine that he is never at Champneys at a time at which it is convenient for the office staff to give him information.

I believe that it is more important for employees to have the right, particularly if no one else is on duty for those hours, to have available information delivered to them at that point, since I have many other employees who I can engage to make that information available to such employees. That should be done rather than obliging employees, at their own cost, to drive all the way back to come to my premises during my hours of work to suit me.

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This is by way of a probing amendment, but it has a great deal of merit. I hope that the Government will look at it quite favourably. It is important to bear in mind that, whereas the vast majority of employees work relatively straightforward shifts, there are a number of employees in a number of industries who work odd shifts. We should not forget them in looking at what it is reasonable to expect them to do.

Amendment No. 87 is along the same lines but a little bit different. Clause 14 describes the power of an officer and subsection (3) sets out the way in which that officer may give notice. On a number of occasions I have listened to debates in committee where there has been a definition of the word "reasonable". The noble and learned Lord the Solicitor-General has said on a number of occasions that he does not, under any circumstances, wish to invite a court to decide. He said that that was the last thing that he would wish. And yet Clause 14(3) states:


    "The powers conferred by subsection (1) above include power, on reasonable written notice, to require a relevant person",

but there is no definition of the word "reasonable".

In this case it is obviously the notice given by the officer to the employer but it has an effect on the employee. Therefore, we merely seek to suggest that it would be reasonable to define the length of time. Indeed, the amendment suggests that "reasonable written notice" should be defined as a period of 14 days or,


    "at some later time as may be agreed between the officer and employer".

I should be grateful if the Government would look reasonably sympathetically at both my amendments. I beg to move.


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