Employment Bill

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Mr. Hammond: I beg to move amendment No. 95, in page 2, line 6, after 'employment,' insert 'with his present employer'.

This is a probing amendment. The Bill refers to regulations specifying conditions covering duration of employment and the amendment probes the Government on whether they intend that the condition that the employee must satisfy will relate to a period of continuous employment with the present employer--the employer who is liable to grant the leave--or whether the provision will be more general and cover continuous employment over a specific period.

Alan Johnson: I can give the hon. Gentleman the assurance he seeks. The amendment is unnecessary because our proposed regulations, as with those that we have already made on parental leave, will express the service qualifications as a period of continuous employment as defined for the purposes of the Employment Rights Act 1996. The definition in the Act provides that continuous employment is generally employment by one employer, but there are a few exceptions--for example, a change of employer resulting from a takeover is disregarded. We believe that those exceptions should apply to paternity leave as well as to parental leave.

The amendment is unnecessary and I am happy to give the hon. Gentleman the assurance that he seeks.

Mr. Hammond: I am satisfied with that explanation, Mr. Benton, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 102, in page 2, line 12, leave out 'the extent of'.

This amendment would provide economy of drafting, but in rejecting it the Minister may say that there is more significance in new section 80A(2), which states:

    ''The regulations shall include provision for determining--

    (a) the extent of an employee's entitlement to leave under this section''.

Regulations including provision for determining the extent of an employee's entitlement are not markedly different from regulations including provision for determining an employee's entitlement. Can the Minister explain whether there is any significance in the words ''the extent of'' or could they be removed in the interest of economy of drafting?

Alan Johnson: There is no significance. During the previous Parliament, several former distinguished Members were involved in an initiative on drafting Bills in clear English, but that seems to have come to a

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grinding halt. The amendment is unhelpful because new section 80A(2)(a) was drafted in the same way as section 76(2)(a) of the Employment Rights Act 1996, which deals with entitlement to parental leave. Our intention in the drafting of clause 1 on paternity leave was to mirror as closely as possible the provisions in existing legislation on maternity and parental rights. The details of the regulations will not be identical, but it would not be helpful to have differently drafted enabling powers in primary legislation when it is unnecessary. That would imply to those reading the text that we had a different notion in mind, which is not so. With that explanation, I hope that the hon. Gentleman will withdraw the amendment.

Mr. Hammond: I agree with the Minister's sentiments on economy of drafting. People will listen to his words and take note of them in due course. I do not want to pursue the issue, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 99, in page 2, line 14, at end insert

    'and the requirements for consultation between the employee and his employer as to when such leave may be taken'.

The Chairman: With this it will be convenient to take amendment No. 132, in page 8, line 19, leave out 'may choose' and insert

    'shall agree with his employer'.

Mr. Hammond: The amendments would apply to different parts of the Bill but cover the same point. They would require the regulations not only to make provision determining when leave may be taken, but would impose a requirement to make provision for consultation between employee and employer. I said earlier that paternity leave must not be seen as a benefit or handout for the personal welfare or good of the person receiving the leave, because it is not leave in the sense of rest and relaxation. In most cases, if it is properly used, it will probably be harder work than being in the workplace. It is for the good not of the person taking the leave but of the family and society as a whole--a concept that I think we have all embraced. It should not be something applying to the employee unilaterally. We heard a lot about balancing work and family commitments and balancing means having due regard to the needs of both. Most employees would expect their employers to be reasonable in recognising their real needs and family circumstances and we have had the opportunity in the Committee to consider examples. People may need to work slightly different hours from their colleagues because they have an obligation to drop a child off at school or to pick a child up from school. It must work both ways and the words that amendment No. 132 would omit suggest that the date on which leave is taken is simply a matter for the employee to choose, which is rather one-sided. That takes us rather unhelpfully away from the idea that the process is collaborative with broad benefits and returns to the old adversarial style.

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I would prefer regulations requiring some consultation between employee and employer. I do not want to expound at length on where the balance of power should lie in that negotiation and who the ultimate arbiter should be. However, before the employee simply slaps in his notice stating that he will not be at work from such and such a date to such and such a date, I should like to think that it was reasonable for a discussion to take place, particularly in relation to small businesses, where the absence of an employee could have a serious effect. For example, the employer might say, ''Look, Fred, you know Monday is our busy day. How would you feel about starting your paternity leave on Tuesday? Would that be a particular problem for you?'' We should at least provide for the possibility of creating a mechanism that enables discussion, so that the needs of the employer, as well as those of the employee's family, can be taken into account. That would seem very much in the spirit of what the Government have promoted as a work-family balance.

Norman Lamb: I should be grateful if the hon. Gentleman could offer a little further explanation. I understand the concept of consultation and discussion, and one would hope that that would take place in any good relationship between an employer and an employee. However, amendment No. 132 goes further than that by referring to agreement between an employer and an employee. Under it, what would happen in a scenario in which an employer stonewalled an employee and no agreement could be reached?

Mr. Hammond: I acknowledge the hon. Gentleman's point. The amendment, which would insert the phrase

    ''shall agree with his employer'',

is a probing amendment that goes to the opposite extreme. The phrase

    ''such date . . . as the person entitled may choose''

is at one end of the spectrum, and a phrase such as ''at such date as the employer may notify him'' is at the other. In my view, neither is acceptable, and we must try to find common ground. Unfortunately, where one party does not have the power unilaterally to impose his will on the other, there may be an inability to agree. A resolution procedure might therefore have to be adopted that consists of using a sledgehammer to crack a nut.

In tabling the amendment, my purpose was not to argue passionately for the language used in it, but to ask whether the Minister accepts that, within reason, employer and employee should recognise their differing needs and attempt to agree about the time at which leave will be taken. That would seem to be in the spirit in which the Government have presented this part of the Bill. An employee might want to agree with the employer that he has considerable flexibility, and I shall table later amendments that would introduce more, not less, flexibility for the employee.

If we are to introduce this provision, we should do so in a way that reflects the real needs of people. Otherwise, the exercise will become meaningless and people will take their lump of leave not because they

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need to deal with real issues, but simply because it is there. For example, it is quite likely that an employee will to want start his period of paternity leave literally before the birth of the child. He might wish to commence it on little notice, at the very point when his wife rings him up and says, ''I think it's coming.'' As drafted, the Bill does not offer that flexibility. It states that leave must be taken before the end of the period of 56 days, beginning with the date of the child's birth. That does not seem very helpful.

Does the Minister think that such inflexibility and one-sidedness is helpful, or is he prepared to think again and include a gesture towards a consultative approach to working out the times at which such leave can be taken? I suspect that the Bill provides for the taking of such leave in a single two-week block in an effort to help employers, but later amendments will highlight the fact that, in some circumstances, that might be unhelpful. I can think of many circumstances where small businesses might consider it far more preferable for such leave to be taken in two one-week periods, with a week or two in between. It strikes me as absurd that if an employee would prefer to take their leave in two blocks and their employer would prefer them to take it in two blocks, Her Majesty's Government should decree that it must be taken in a single block. The issue is one of flexibility.

5.30 pm

Norman Lamb: The hon. Gentleman made the good point that there may be circumstances in which taking leave before the birth of a child would be helpful from an employee's point of view. That would seem to offer increased flexibility, which makes sense. Does he feel, however, that that argument contradicts the amendment's purpose? There may be a situation in which an employee's wife or partner is in hospital and the phone call comes in, but the amendment requires a period of consultation before an employee can take paternity leave.

There are some limited circumstances, of which maternity leave is one, in which, under the legislation, the employee is able to say, ''This is when I am taking my leave.'' From the father's point of view, paternity leave, limited as it is to two weeks following the birth of a child, should be regarded in the same light as maternity leave for women. The employee should be able to say, ''This is when I am taking my leave because this point in my child's life is when I need to be with my child and partner.''

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