ANNEX
RESPONSE FROM THE DEPARTMENT OF TRADE
AND INDUSTRY
Government Observations on the Third Report
from the Education and Employment Committee (Session 1999-2000)
on The Draft Part-Time Employees (Prevention of Less Favourable
Treatment) Regulations 1999
INTRODUCTION
The Government welcomes the Third Report from the
Education and Employment Committee (Session 1999-2000) on The
Draft Part-Time Employees (Prevention of Less Favourable Treatment)
Regulations 2000.
This memorandum sets out the Government's reply to
the Committee's specific conclusions and recommendations.
CONCLUSIONS, RECOMMENDATIONS AND GOVERNMENT RESPONSES
The Draft Regulations and Consultation:
1: That "We are not persuaded that the Government's
reasons for delaying the publication of the consultation document
were sound¼We
do not believe (private consultation) should be treated as a substitute
for an open public consultation exercise."
The Government believes in full and open consultation.
On this occasion, the consultation was shorter than we would have
liked, but it was important to get the proposals right before
going out. Consultation with the Working Group complemented the
public consultation giving the benefits of a wider input into
the proposals.
2: That there were "errors contained in the
regulatory impact assessment, together with the unfortunate phraseology
used in the notes, suggest that insufficient care was taken in
the production of the consultation paper." Casting "doubt
on the rigour of the Government's private consultation."
The changes in the regulatory impact assessment were
unconnected with the consultation process, they were the result
of a re-analysis of the data, part of the normal process of refining
figures. On the notes, improvements can always be made in wording,
the phraseology on training has been improved as a result of the
Committee's comments. The consultation provided the opportunity
to strengthen the proposals in several respects.
The Meaning of 'Employee':
3. That "We believe that the arguments in
favour of a broader definition of 'worker' are persuasive¼"
and that 'employee' does "not appear to meet or reflect the
intentions behind the Directive and could be open to legal challenge."
The Government has taken into account the strong
views expressed in response to the public consultation paper,
and has, in this instance, extended the coverage of the regulations
to the broader definition of 'worker'.
The concept of a hypothetical comparator:
4. That the definition of a comparable full-time
employee was 'unnecessarily restrictive' and that "we urge
the Government further to consider the use of a hypothetical comparator."
The Government takes note of the Committee's recommendation.
The regulations have been extended to allow part-timers to compare
themselves with their previous full-time contract after a switch
in their working hours, or on returning part-time after a period
of absence such as maternity leave. However, the Government believes
the concept of a hypothetical comparator is inappropriate in the
context of this Directive. The regulations produced are straightforward
to enforce and based on a common sense pro rata treatment of part-timers
in comparison with real-life full-timers.
The Code of Practice:
5. That "We are dissatisfied with the Government's
decision not to produce a Code of Practice¼"
and to replace it with "guidance which will not have the
same force in law. We would also welcome from the Government a
new response to those recommendations in our Second Report of
Session 1998-1999¼in
particular we would welcome from the Government clarification
on how it intends to implement Clause 5 of the Framework Agreement¼including
Clause 5.2¼and
Clause 5.3."
The Government wishes to promote the advantages of
part-time work in the most effective way. We believe this is best
achieved by issuing, in conjunction with the social partners,
a plain English guide to best practice for the benefit of employers
and part-timers. The whole of Clause 5 (including 5.2 and 5.3)
will be implemented through a Programme of Information, including
guidance, which will be available on the DTI's Part-Time Work
website.
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