Small Business, Enterprise and Employment Bill

Baroness Donaghy Excerpts

Monday 26th January 2015 Grand Committee

[Baroness Donaghy (Lab)]

My Lords, perhaps I may say a couple of words in support of these amendments. I was a member of the first Low Pay Commission when it was formally established in 1998. We obviously spent some time on the issue of enforcement. The difficulty was that the people who were in industries that did not pay a statutory minimum wage were very often reluctant to complain in the first place. Certainly, in some of the textile industries that we visited, it became fairly clear that if anyone put their head above the parapet, not only would they eventually lose their job in their own workplace but they would not find a job again in any textile industry within travelling distance. I am sure that that is not unique to textiles, so it will always be a major problem to enforce this and to get people to make a formal complaint and take that kind of risk with their future.

The Low Pay Commission is also keen for there to be a very good system of accessible information for people who want to know what their rights are. The original information issued by the Low Pay Commission was very good. Unfortunately, this Government changed it so that it was no longer fit for purpose. That was a statement made by the Low Pay Commission—that the website was no longer fit for purpose—so it is hardly surprising that the number of complainants is not only not rising but is probably falling in relation to the increased number of people in the labour market as a whole.

As my noble friends Lord Watson and Lord Whitty have said, the casualisation—or further casualisation—of the workforce makes this extremely difficult to enforce. My view is that the more headline news you get about successful prosecutions and fines, the more likely people are to put their head above the parapet. It always amazed me when people used to say about the previous employment tribunal system, “Oh, the penalties that you can get are £50,000 a year”, which was ridiculous; the level at the time when I was chair of ACAS was £5,500. That was the average settlement, not the headline figures that newspapers would imply. The reality of the minimum wage and its enforcement is so far removed from the kind of discussion that we are having today that it is almost difficult to know where to start. I urge the Minister to think about accessible information, and perhaps to consult the Low Pay Commission to ensure that it is adequate for both applicant and respondent.

[Lord Popat (Con)]

My Lords, I thank the noble Lord, Lord Young, for his amendments to Clause 147, and for giving us the opportunity to debate the important subject of the national minimum wage. I have heard a number of concerns raised by the Opposition about the underpayment of the national minimum wage. I hope that my notes will cover what the Government are doing about that.

Clause 147 is an important step towards ensuring that employers comply with the national minimum wage legislation. It will amend the National Minimum Wage Act 1998 so that the maximum penalty that can be imposed through a notice of underpayment will be calculated on a per-worker basis rather than per employer. This will substantially increase the penalty for employers who owe large arrears to a number of workers. My noble friend Lord Storey asked this question, so I am pleased to confirm that the penalty of £20,000 is per worker.

By applying the penalty to each worker, employers owing high arrears to a number of workers may be issued with a greater penalty overall, as well as a higher maximum penalty. The higher penalty will deter employers from breaking national minimum wage law in the first place, ensuring that workers receive what they are entitled to and to come down harder on those employers who continue to break the law.

I will now respond to each amendment. Amendments 68ZN and 68ZP are designed to increase the maximum civil penalty available for non-payment of the national minimum wage from £20,000 to £50,000 per worker. I heard what the noble Lords, Lord Whitty and Lord Watson, had to say on this subject, and we welcome the recognition from the Opposition that there is a need to increase these penalties but we do not see the evidence to set the upper limit at £50,000. As the impact assessment for the measure sets out, 6% of cases in 2013-14 involved total arrears in excess of £20,000. None of these cases was anywhere near the upper limit suggested in the amendment.

Under the Bill, the penalty will be applied on a per worker basis, as I said. When you look at the cases where HMRC issued a notice of underpayment in 2013-14, the change means that in almost every case, the employer would have been issued with a penalty equivalent to the total amount of arrears they owed, rather than having the overall penalty capped at £20,000. As a result, the amendment would have had very little impact on the level of penalties in those cases.

However, I reassure noble Lords that if, in future, there is evidence to suggest that a higher maximum is needed, we can make that change through secondary legislation. I hope that I am giving reassurance to the party opposite that if we think in future that £20,000 is not enough and we need to raise it, we can bring in secondary legislation to increase the penalty.

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Moved by

[Baroness Donaghy]

68ZT: After Clause 147, insert the following new Clause—
“Internships
(1) The Secretary of State must publish a report on the use of internships within the UK labour market.
(2) The report shall include details on, but is not limited to—
(a) the definition of an internship with reference to other forms of voluntary work and work experience;(b) the growth of internships in the labour market over the past five years;(c) the incidence of internships by industrial classification;(d) the range of contractual arrangements that apply to internships; (e) the average and median length of internships;(f) the proportion of internships that are paid;(g) the range, average and median pay for paid internships;(h) the expenses and allowances made available to internships;(i) the impact of internships on social mobility;(j) the subsequent career choices made by interns;(k) the relative progress in employment of those who have undertaken internships.(3) This report shall be published within one year of the commencement of this Part and must be laid before both Houses of Parliament.”

[Baroness Donaghy]

My Lords, Amendment 68ZT asks the Government to publish a report on the whole issue of internships. Clearly, it is a probing amendment, and I make it clear that I am not against internships. Paid internships are not only fair but can be argued to be good for business, as they allow all to compete on an equal footing for valuable experience. Across all sectors, those firms offering paid experience get more applications from a broader range of candidates. By offering the minimum wage, or even the London living wage, firms are able to secure the most able workers.

However, where internships are informal and unpaid, they are likely to be unstructured and unhelpful for the intern and for the company. The proliferation of unpaid internships is now a barrier to social mobility and is blocking routes into higher-paid jobs for young people from low-income backgrounds. Although information on internships varies, the Chartered Institute of Personnel and Development, of which I am a member, estimates that 21% of businesses offering internships do not pay their interns. According to the Sutton Trust, it is estimated that across the UK 22,000 interns are working unpaid at any one time. Data from the trust show that 31% of recent graduate interns are working for no pay. In the 2012 report on fair access to professions, the Social Mobility and Child Poverty Commission noted that unpaid internships are concentrated particularly in the creative industries, the media, and financial and professional services.

The Sutton Trust report continues by stating that an unpaid internship can cost an individual £926 a month in London, or £804 a year in Manchester, on a six-month work placement. The cost of working for nothing rules out all but those from better-off families and discriminates against the majority of young people, who cannot afford to work for free. The trust goes on to say:

“All internships longer than one month should be paid at least the National Minimum of £6.50 per hour, and preferably the National Living Wage of £7.85 (or London Living Wage—£9.15—in London)”.

I am not making any particular proposals on this issue; I am simply indicating what other organisations support. If I am asking for an inquiry, it would be rather inconsistent for me to state what policies I particularly supported. The trust wants internships to be advertised publicly rather than being filled informally, and recruitment processes to be fair, transparent and based on merit. That reflects a statement issued by BIS regarding internships, so I do not think it contradicts anything that is already BIS policy.

An Ipsos MORI poll of 1,700 adults in England for the charity suggested that 70% felt that unpaid internships were unfair as only the wealthy could afford to take them, and some 55% agreed that internships of up to six months should pay at least the minimum wage, with 73% supporting it for placements of more than a year. The YouGov polling shows that 65% of businesses support the proposal to end unpaid internships, presumably because it gives an unfair advantage in certain cases if you do not level the playing field. Bodies such as the Institute of Directors, UK Music, the Royal Institute of British Architects and a range of bodies representing the PR and creative industries also support getting rid of unpaid internships. Alan Milburn, chair of the Social Mobility and Child Poverty Commission, has called on policymakers to adopt a four-week limit on unpaid internships. As I have said, BIS supports an open, fair and transparent process of appointment to internships and indicates:

“Anyone who is a worker is entitled to be paid at least the minimum wage, this includes interns who fall into the worker category”.

Thereby hangs the problem. The lack of clarity about what constitutes an internship is frustrating the application of the National Minimum Wage Act.

In conclusion, internships are becoming essential for access to many professions. Because a high number are unpaid and unaffordable to those from ordinary backgrounds, too many young people are being excluded from the opportunities that they deserve. Although I accept that there will always be a need for casual labour in a flexible labour market, the current position is unfair and disproportionate. A civilised society should be prepared to look at the obvious nooks and crannies in its system, not least if it might go some way to solving our poor productivity record. I cannot help but think that the increasing casualisation of our labour force and our poor productivity record have something in common. I beg to move.

[Lord Watson of Invergowrie]

My Lords, I came along this afternoon intending to support my noble friend Lady Donaghy on this amendment and I shall attempt to do so, but I regret that so comprehensive has been her advocacy of it that it has left me with little to say. Perhaps I might stress two or three of the points that she made.

One of the aspects that worry me is undoubtedly the fact that unpaid internships are, by their very definition, exclusive to people who, by whatever means, are able to have their costs of living covered while they undertake them. That necessarily makes them exclusive and is unfair. Some people would say that life is unfair; yes, of course it is, but in terms of employment we can try to make the playing field as level as possible. I see no reason why anybody undertaking an internship of more than one month should not be paid. Up to one month, it may be genuine work experience; beyond that, it is a bit more. While the person may find personal benefit, the employer gets a benefit as well. That very important point should be looked at.

There is also a rather disturbing trend now of companies emerging that will charge people a fee for placing them in an internship. That is worrying and, while some of them are paid, you may have to pay even to get on to an unpaid internship. I do not believe that that is right. There are also situations where auctions for internships are held. They sometimes involve charities and, on the face of it, that is worth while but, again, it suggests that it is not an appropriate way to bring anybody into the workforce, paid or unpaid. I regret that development.

Most of all, it is important that anybody doing a job should be paid the rate for that job. Some Members of this House and some Members of the House just down the Corridor need to look at their own practices in this respect, because it has been revealed that there are more than a few unpaid internships within the Palace of Westminster. That does not set any kind of positive example for keeping anybody on beyond a month. With those brief remarks, I am pleased to support the amendment in the name of my colleague and noble friend Lady Donaghy.

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[Baroness Neville-Rolfe]

I thank the noble Lord for that further clarification. There is a lot of common ground here. We need to address certain issues and, clearly, we are all keen to stamp out exploitation.

[Baroness Donaghy]

My Lords, I am very grateful to noble Lords who have taken part in the debate. I thank the noble Lord, Lord Storey, for his comments. Of course, there is no intention to interfere with the perfectly well known volunteer system or with anything to do with sandwich courses in universities. I think we all know what we mean when we talk about these cases, but we are not very strong on analysis, and we need to pin that down.

My noble friends have certainly pointed to the exploitation issue—that somebody can be very willing because of the future opportunities that an internship can give them. Because their family can support them they might grit their teeth and say, “Well, let’s put up with this for a few months, because it will open doors that otherwise will never be opened”. It is still exploitation. The vast majority of people that I am talking about do not even get through the front door; they do not even get through the door to enable themselves to become disgruntled, so that they can go for enforcement or to various websites to ask about it. They are outside this semi-privileged circle. That is the issue that I want to pinpoint.

[Baroness Neville-Rolfe]

It certainly has not been my experience—and I used to work outside London—that all internships are a gilded circle. Internships and work experience are quite broadly based in the cities of Britain, which is a very good thing. I am keen that that should continue in big firms and small firms, in the public sector and in the voluntary sector. We have to be careful that we do not take steps which, with the best will in the world, have a perverse effect, so it is right that we should debate these issues. Like the noble Baroness, I have a lot of passion to make these things work and to encourage more opportunities for more people.

[Baroness Donaghy]

I thank the Minister for that comment. I think that we are not too far apart on the need to identify and be more objective about what we are talking about. I am referring all the time in this amendment to unpaid internships. As I have said, I think that there is an element of exploitation. Perhaps any report or further discussion that we might have could look at some time limits that are acceptable. I am grateful for the Minister’s comprehensive reply. I will look at that in more detail but at this stage beg leave to withdraw the amendment.

Amendment 67ZT withdrawn.

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[Baroness Donaghy]

I want to say a brief word about this because I must admit that I have a personal dislike of the phrase “zero-hours contracts”. Casual labour has existed for a very long time. It has had different names and different fashions have been followed. I think we are all aiming to ensure that while we do not completely get rid of a flexible labour market, basic employment rights are available to those who have spent any significant length of time in a particular job. We know what we are talking about here, do we not? There is the story of the burger operative—or whatever they are called—who was told that he was not working when not serving a customer. His pay was therefore suspended so that he was receiving pay only when he was serving customers. The argument then was, “Of course, the franchisee went beyond his remit”. That is a marvellous excuse made by some national brands; they can blame a local manager for doing something when the tone has probably been set at national level.

This could be extended to all sorts of other areas by saying, “You are not actually working”. I know that the noble Lord, Lord Stoneham of Droxford, used to work for the National Union of Railwaymen. I wonder if the same would apply to a train driver who is not driving his train while stopped at a signal, and therefore should perhaps not be paid until such time as the signal is green. That was how ridiculous some of these practices were on the ground. To go back to the reality of the casual world of work, as we know it in this country, those practices are not really funny. They are quite serious examples of exploitation so I make no apology for supporting my noble friend Lord Young on these amendments, if only to try to get to a situation where we are paring back all these gimmicky phrases and looking at people’s basic employment rights.

[Baroness Neville-Rolfe]

I thank the noble Lord, Lord Young, for these amendments and for the debate we have had on this part of the Bill, which went slightly wider than the amendments. I ought to say that Labour did nothing about zero-hours contracts for 13 years. The number of them went up by 75% between 2004 and 2009. What we have done is to carry out a review into these contracts, so that we can deal with any abuse. As a result, we are banning the type of contracts which mean that employees are not allowed to work for any other employer, while still allowing people such as students to benefit from the flexibility that they offer.

We introduced Clause 148 to deal with this mischief and I am glad to hear the noble Lord’s support for it and my noble friend Lord Stoneham’s perceptive analysis. The noble Baroness, Lady Donaghy, rightly tried to improve our English and not talk about zero-hours contracts. It may be that like one of the terms we were struggling with earlier, the term is an Americanism. Wikipedia does not give its origin but I will hunt it down.

At present, an individual subject to exclusivity terms in their zero-hours contract cannot seek work elsewhere, regardless of whether the employer offers only occasional, minimal, or even no hours of work. Exclusivity terms are unfair for the individual who, as a result, is prevented from boosting their income or building on their work experience. Frankly, it is also damaging to the economy because it prevents people from reaching their full employment potential.

As my noble friend Lady Harding made clear at Second Reading, from her own experience of running a supermarket in Yeovil, zero-hours contracts are an important element of a flexible, vibrant labour market, and they work for employers and individuals alike. I even heard the shadow Business Secretary agreeing that sometimes people quite like to use them. However, I think that we also agree that people working under such a contract must get a fair deal.

The ban on exclusivity terms in zero-hours contracts, as set out in the clause, is straightforward. From the moment the clause commences, individuals can simply ignore an exclusivity clause and work for another employer as well if they wish. There is no process, no admin and no need to discuss this with the employer—I am not sure that people understand this—and any attempt by the employer to stop a second or third arrangement would be unenforceable. This is a major change and a reduction in employer flexibility, but one that we believe is right.

Amendment 68ZU seeks to provide a route of redress for zero-hours workers who need to enforce their rights, allowing for regulations to set out the details. The clause already provides for an order-making power that will allow for this.

Amendment 68ZW seeks to make the use of that order-making power mandatory. However, given the fact that routes of redress will be delivered through the order-making power, I am sure that the Committee will agree that in this case the amendment is unnecessary. The Government will have to bring forward regulations; otherwise, the ban on exclusivity terms in zero-hours contracts will have no meaning. For this reason, I do not believe that we need to make this amendment. The regulations that will be possible under the order-making power will also be able to address the issue of redress that is covered in detail in Amendment 68ZAB; that is, that an employment tribunal will have the power to consider claims related to the exclusivity ban, including providing remedies to the individual and issuing penalties to the employer. The Government recently consulted on using the order-making power. We are currently finalising the details with a view to publishing the government response shortly on how we plan to tackle avoidance.

Amendment 68ZZ suggests that the definition of an exclusivity term is too narrow. However, the Government have looked at this and consider the description in new Section 27A(3) of the Employment Rights Act 1996, which will be inserted by Clause 148, to be sufficiently broad. It covers any provision in a zero-hours contract that prohibits working for others, as well as terms that require an individual to seek permission from their employer to do so.

I believe that our approach will deal sensibly and effectively with both avoidance of the ban and routes of redress for individuals on a zero-hours contract who suffer a detriment. I hope that on this basis the noble Lord will agree to withdraw the amendment.