Employment Rights Bill

Earl of Clancarty Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, in moving Amendment 16 in my name, I offer my apologies for not being able to be present at Second Reading, although I followed the debate that your Lordships had then, as I have today’s debate, particularly the earlier group on zero-hours contracts.

I also offer my thanks to the Society of London Theatre and UK Theatre, which represent some 500 of the UK’s leading theatre producers, venue owners, managers and performing arts centres, and with which I had the honour of working closely when I was Arts Minister, for raising the issue that underlies my amendment and for discussing it with me in some detail. I stress that those organisations welcome many of the measures in this Bill and share the Government’s ambition to eliminate exploitative practices, but they have flagged their concerns with the provisions relating to zero-hours contracts, which are integral to operations in theatre and other live performing arts, and which presently operate in a way that delivers fairness, flexibility and inclusion for the sector and the brilliant, creative people who sustain it.

I am sure, by the end of proceedings on the Bill, that the Minister will have tired of special pleading on behalf of every sector of the economy, but theatres operate under a unique set of pressures, including the stark new pressures that I saw them confront during my time in government—from the bleak months of Covid-19 to the rising costs of energy and materials following the inflationary effects of that pandemic and of the illegal invasion of Ukraine.

The effects of that turbulence—rising costs and falling real-terms income—mean that theatres must work harder than ever before to balance the necessity of making a profit with long-term investment and their sincere commitment to delivering social good. The arts hold a mirror up to our society and help us to understand the human condition—a value that cannot simply be measured in ticket sales and bottom lines, important though those are.

In particular, as major employers of a casual workforce, theatres have to manage highly irregular and unpredictable staffing needs while supporting and valuing their workers, without whom theatre simply could not happen. As one of the organisations which sprang up during the pandemic put it in its very well-chosen name, freelancers make theatre work.

The proposals in the Bill as currently drafted, regarding the right to guaranteed hours for casual workers, risk upsetting the delicate equilibrium by which the theatre sector operates, balancing commercial viability with social value, long-term investment with short-term realities, and the demands of an irregular calendar with a commitment to fairness for its workforce. Although I am glad to see that the Government have amended the Bill in the ways we have just debated in the previous group and will debate when we look at further government amendments which follow—particularly, in this instance, to allow collective agreements to override the new statutory right—the mechanism set out in new Section 27BW does not fully solve the problem and is unlikely in practice to provide the safeguards that this cherished sector needs.

Theatre’s operating model is inherently shaped by irregular programming, seasonal variation and periods of closure. Those aspects are baked into the way that theatre works and are part of what makes it so dynamic and diverse. Notwithstanding the well-known mantra that the show must go on, theatres do not operate continuously. Even long-running productions experience periods of closure, known as dark weeks, when no performances can be staged and no box office income is generated. The opening of a major new production might require up to 12 weeks to load in sets and equipment and to undergo technical rehearsals. These help productions to dazzle us with ever-more ambitious technical wizardry, and are rightly the stuff of separate award categories for lighting, sound, set design and more.

Short, planned closures, typically for at least a fortnight each year, are needed to carry out essential inspections and to ensure that buildings remain safe and compliant for those who enjoy visiting them. That is particularly important in heritage venues, which receive heavy footfall but only modest and irregular investment. I pay tribute to the work of the Theatres Trust and others who champion the value and plight of historic theatres, concert halls and other cultural buildings across the country, and acknowledge the pressing capital needs of our cultural estate, particularly at a time when many of the boilers, roofs and windows that were funded by the first wave of National Lottery funding some quarter of a century ago are all reaching or long passing the natural time for an upgrade.

Sometimes, of course, these periods of closure are needed without much warning at all, as I saw during my time as Minister, when I had occasion to learn, along with most of the rest of the country, what reinforced autoclaved aerated concrete was. The noble Baroness, Lady Thornton, from the Benches opposite, and I were both at a very enjoyable performance of “The Witches” at the National Theatre, which had to be halted midway because of a breakdown of the Olivier’s revolving stage. I am very pleased that the last Conservative Budget helped the theatre to fix that before its 60th birthday year was over.

The sad fact is that performances can be cancelled at short notice for a variety of reasons, most of which are beyond the control of the theatre operator and staff. I have mentioned two egregious examples already—the pandemic and the need for health and safety in the face of things such as RAAC—but many other external challenges beset theatres from time to time: severe weather causing leaks or other damage which requires repairs, external events such as power cuts, or industrial grievances from other sectors having a knock-on effect. I am sure it is not betraying any state secrets to say that one of the few COBRA meetings I was called to attend as Arts Minister was to discuss the effects of the train strikes on our theatres and other parts of our night-time economy, which lost audiences and vital income as a result.

Of course, there are those unforeseen incidents which come like the theatrical deus ex machina. Last year, for example, a touring production of “Chitty Chitty Bang Bang” was brought to a halt when the eponymous vehicle, “our fine four-fendered friend”, was damaged during the get-out at one of its venues. The repairs to the vehicle took several weeks, leading to the cancellation of all performances during that period. That meant that other venues which had booked the production received no income and were unable to programme another show at such short notice.

During times such as these, there is, quite simply and unavoidably, no front-of-house work available. Guaranteeing hours during periods like that, as the Bill requires, would mean paying staff when no work exists, placing enormous pressure on theatres’ and other arts venues’ already very tight operating budgets. That is the reason for my Amendment 16.

The proposed right to guaranteed hours assumes that organisations operate with consistent demand and regular staffing patterns. That is not the case in theatres or, as we heard in previous debates, in many other businesses and organisations. Theatres’ scheduling requirements and therefore their staffing needs shift weekly—sometimes daily. Guaranteeing fixed hours based on short-term patterns of work, as the Bill proposes, would introduce a level of rigidity that threatens their entire staffing model.

The aim of my Amendment 16 is to urge the Government to acknowledge the unique dynamics of theatre and of the arts sector more broadly, and to adopt a more realistic framework, which will be beneficial to many sectors beyond theatre and the performing arts. UK Theatre has suggested the concept of “available hours”, which I have reflected in my Amendment 16, referring to the actual hours that an employer can collectively offer workers in a given period. This approach would allow for the equitable allocation of work while remaining responsive to the volatile nature of theatre operations.

It would also reflect the desires of the staff who value the flexibility that theatre work currently affords them. Many of those who work front of house do so to support other careers or responsibilities; as noble Lords noted in our debates in relation to other sectors, people have many family or caring burdens. But theatres particularly attract front-of-house staff who want a flexible job, perhaps because they are creative freelancers balancing work with auditions, because they are students are still learning their trade, or because they are retirees and theatre lovers seeking fulfilling part-time work or seeking sociable evening, but not night-time, working hours—rather unlike your Lordships’ House.

The theatre sector’s sincere understanding of its workforce is rooted in over a century of constructive and collaborative industrial relations with the trade unions in the sector, whose names are almost as well-known as those of some of their famous members: Equity, BECTU, the Musicians’ Union and the Writers’ Guild of Great Britain. Their symbiotic relationships have produced agreements which are highly tailored to this unique sector. These strong union relationships and robust collective agreements already guarantee protections such as minimum calls, notice periods and compensation for cancelled shifts.

The recent amendments to the Bill include a provision under new Section 27BW which allows certain rights, such as the proposed right to guaranteed hours, to be excluded through a relevant collective agreement. But such an agreement must explicitly exclude the statutory right and include clear replacement provisions. Retaining this flexibility would now depend on being able to negotiate its exclusion.

Without that flexibility, the Bill before us risks creating structural unfairness, entrenching advantage for a small number of workers at the expense of wider opportunity, undermining long-standing and vitally cherished industrial relations, and damaging the ability of theatres to take creative risks, maintain their heritage buildings and serve the community. What is intended as a protection could in practice become a barrier to access and inclusion. I am sure that is not what the Government want to see, so I hope the Minister will agree to look at this carefully and to discuss it with me, with UK Theatre, the Society of London Theatre and many others from the world of the arts to make sure that the Bill delivers for those cherished sectors. I beg to move.

[The Earl of Clancarty (CB)]

My Lords, this amendment points up the need for a nuanced approach tailored to industry requirements. This is the first particular instance we have in the Bill of its potential effect on the creative industries, which will crop up again—I assure the Minister—as the Bill progresses. I congratulate the noble Lord, Lord Parkinson of Whitley Bay, on introducing this amendment. I hope the Minister will look carefully at the SOLT/UK Theatre briefing, which is highly informative and measured and demonstrates well the wide degree of flexibility required for the employment of, for instance, front-of-house staff in theatres.

We often take front-of-house staff in theatres and cinema workers for granted, but they are the backbone of these organisations. They could not run without them. In my experience, they are unfailingly polite and helpful and often highly knowledgeable. A fair number, as the noble Lord, Lord Parkinson, said, have jobs in other areas of the creative industries, which highlights the complexities of working relationships in this sector.

The briefing from SOLT/UK Theatre is, of course, the view from the employers, and the solution has to have the support of all stakeholders, including the workers themselves. According to The Stage,

“actor Nicola Hurst, who is also a duty manager … at Southwark Playhouse, said … she had turned down permanent contracts multiple times … as they could never offer her the flexibility she needed to pursue her creative work”.

She speaks for many in this sector when she says:

“I have colleagues and friends working at all levels in the theatre industry, from fringe to the West End, and for all of them, zero-hours contracts are essential to support themselves between creative jobs, and often, to bolster fees from a tragically underfunded sector”.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I thank the noble Lord, Lord Parkinson, for tabling Amendment 16, which would require the Secretary of State to have regard to sector-specific work patterns when making regulations relating to the right to guaranteed hours. I am grateful to all noble Lords for their contributions and for highlighting the sometimes unique employment practices that occur in the creative sector and, in particular, the theatre sector.

In response to the noble Lord, Lord Hunt, I would say that we have engaged extensively with the Society of London Theatre and are happy to carry on doing so. We appreciate that some sectors—including the theatre sector, which is highlighted in the noble Lord’s amendment—do have fluctuating demand across the year.

This is a sector that I know all noble Lords recognise we need to support, for all the reasons that the noble Lord, Lord Parkinson, said, particularly for social value reasons. We therefore want to take note and make it right for the sector.

I reassure the Committee that flexibility is already built into the Bill to address issues of seasonal demand. There are several ways under the Bill that an employer could approach that issue while upholding the new rights to guaranteed hours depending on the circumstances, particularly by using limited-term contracts where that is reasonable. Those who are offered guaranteed hours will be able to turn those down and remain on their current contract or arrangement if they wish. Furthermore, through the Bill we have also allowed for employees and unions to collectively agree to opt out of the zero-hours contract measures. Unions can make these deals based on their knowledge of the industry and with a holistic view on what is best for their workers.

We will ensure that the needs of different sectors are considered when we come to design the regulations. We will continue to work in partnership with employers across the different sectors, their representatives, the recruitment sector and the trade unions to develop those detailed regulations, and we will provide clear guidance for both employers and workers in advance of implementing these measures.

The amendment from the noble Lord, Lord Parkinson, had a new concept of available hours for sectors with varying seasonal demand. We would push back on that issue. It could risk creating a two-tier guaranteed-hours framework for workers in sectors with more or less seasonal fluctuation. We believe that the reference period provided for in the Bill will ensure that qualifying workers are offered guaranteed hours that reflect the hours that they have previously worked.

I hope that, in that short contribution, I have been able to persuade the noble Lord that we are aware of the issues and are on the case. We feel that there is considerable flexibility in the Bill as it stands. We are happy to have further discussions. As we have heard from noble Lords, there are a range of issues and a range of options here, so there is not just one way of solving this problem. We are happy to get round the table and talk some more. We feel that, as the Bill is currently designed, it answers the concerns that are being raised with us, but we are happy to talk further. I therefore hope that, on that basis, the noble Lord will be prepared to withdraw his amendment.

[The Earl of Clancarty (CB)]

The Minister talked about the reference period. SOLT would like to see a longer reference period because a year is much more of a real time length than 12 weeks. Is that something that the Government would consider at all?

[Baroness Jones of Whitchurch (Lab)]

We have previously had a debate on the nature of reference periods, and that is something that we are going to consult further upon. If we are going to have a discussion, let us have a discussion on that as well, and I will see if I can reassure noble Lords on that matter.