Employment Bill

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Mr. Hammond: I accept that—as I say, the Government are making clear their intentions in other documents than the actual Bill. However, someone, somewhere, had the brilliant idea of suggesting that the single period and the 56 days beginning with the date of the child's birth should be included in the Bill, rather than saying in the explanatory notes that that is what the Government intended to do. I hate to use the term, but that looks like spin. For some reason, someone seems to have decided that they should make a statement of intention should be made. Primary legislation is not the place to make such a statement, and our constructive debate has highlighted precisely why that is not a good idea.

The single period may turn out to be the right option, as might 56 days and the start from the date of birth. However, the Minister has acknowledged that even our short and inexpert discussion can clearly raise real questions on the subject. Once the legislation has been enacted and regulations have been made, the experience in the real world may be that the provisions do not work in practice.

Ministers usually say that they cannot accept amendments because they are imperfectly drafted, but when the drafting consists of only

    ''leave out subsections (3) and (4)'',

it is conclusive that such drafting will not be faulty. If the Minister will not accept amendment No. 98, I hope that, at a later stage of consideration of the Bill, he will make a proposal that will remove those subsections. He will then deal at a stroke with the arguments raised under amendments Nos. 98, 104 and 105. In the circumstances, and as he has been so forthcoming, it would be churlish to press amendment No. 101, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 106, in page 2, line 22, leave out paragraph (a).

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The Chairman: With this it will be convenient to take amendment No. 107, in page 3, line 17, leave out paragraph (a).

Mr. Hammond: Amendment No. 106 has been slightly pre-empted by the Minister. It would leave out the power granted under proposed section 80A(5)(a) of the Employment Rights Act 1996, which is that regulations may

    ''specify things which are, or are not, to be taken as done for the purpose of caring for a child or supporting the child's mother''.

The Minister made it clear that he does not think that he is likely to want to do so, and I suspect that he is extremely wise not to attempt to define those issues. He has somewhat pulled the rug from under that amendment, and amendment No. 107, which similarly seeks to remove a provision under proposed section 80B.

However, the amendment raises what I shall call, as a shorthand, the double yellow line issue. The general principle that local authorities rightly adopt is not to put yellow lines where they cannot police them. It seems questionable to specify a purpose for taking leave, so that one of the criteria to be satisfied before one can take leave legitimately and properly is that one takes it for a specific purpose. A motive test seems to be being introduced into legislation. That strikes me as dangerous.

Will the Minister tell us whether there are other examples of similar motive tests in legislation on the subject? How do they work in practice? Do the Government intend to amend the legislation on sick pay, so that people receive it only if they take their medicine? That would be a similar approach, one under which people receive leave only if they are to do good things with it—if they take their medicine rather than do something that this rather moralising Government consider inappropriate. The Minister knows that the Government will never be able to enforce or police such a provision. He has wisely said that he will not attempt to define it, which begs the question whether it should be included in subsection (1) at all. Perhaps we should just acknowledge that as there is no way of effectively controlling whether the motive for taking leave is to care for the child or support the mother, it might be better to leave those words out of the Bill.

Alan Johnson: The hon. Gentleman made a good fist of arguing for the amendment after I pulled the rug from under him. He asked whether double yellow lines were included in other Bills. I do not know, but this provision is included in the parental leave regulations that we have not yet used. Our concern is that the system might be abused. We do not know, but we feel that it would be politic to include such a provision in case we need it. We believe that we can deal with the matter in guidance rather than through regulations but, for the same reason that we argued to keep the word ''may'' rather than insert the word ''shall'' at the beginning of subsections (5)(a) to (c), it would be a mistake not to provide for the ability to address problems that may occur in future. Perhaps, in the midst of time, a similar provision existed in relation to

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statutory sick pay. I do not know, but I am convinced of the need to include a failsafe mechanism to deal with any abuse that occurs. It is not about moralising; it is about being sensible and looking ahead.

Mr. Hammond: I understand the Minister's concerns but he has not dealt with the general philosophical question of whether it is good practice to legislate for things that one knows one cannot police or enforce. I am sure that the Committee agrees that parental leave should be granted only where it is taken for the purpose of caring for the child or supporting the mother, but I am sure that the Committee would also agree that the Government have not the slightest chance of being able to enforce that. As the Minister seems to acknowledge that, it is odd to leave the provision in the Bill. However, as he has responded to my point in his own way, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 94, in page 2, line 29, at end insert—

    '(d) make provision regarding the right to accrue holiday entitlement under the Working Time Regulations (1998) during periods of absence under subsection (1) above;

    (e) make provision regarding treatment of bonus payments made during periods of absence under subsection (1) above'.

At the outset, I acknowledge that the idea for the amendment came from the Law Society, following something included in its Second Reading brief. However, it did not produce a subsequent detailed amendment, so the drafting of the amendment is not attributable to the Law Society and any imperfection in it cannot give rise to any mirth or hilarity at the thought of the Law Society imperfectly drafting an amendment.

I do not pretend to understand the detail of the amendment and I have been too indolent to examine the detail of the Working Time Regulations 1998, but the Law Society says:

    ''the Bill is a wasted opportunity to clarify the existing problems of definitions in maternity provisions, such as the right to accrue holiday entitlements under the Working Time Regulations during periods of statutory leave''.

If that is a problem, as the Law Society thinks, we may not be able to deal with it in existing maternity leave regulations. However, we could allow the Minister to deal with the problem by regulation in relation to the new types of leave that he is introducing. This is a probing amendment. I should like to know whether the Minister agrees with the Law Society that there is a lack of clarity about rights and whether he thinks that the Committee should deal with that in relation to paternity and adoption leave.

Alan Johnson: The amendment would allow us to make provision to prevent someone taking paternity leave from accruing holiday leave under the working time regulations. No problem with maternity leave legislation has been pointed out to us. An employee continues to accrue holiday rights under the

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regulations while they are on maternity leave, and we propose exactly the same rights with paternity leave. Unless we make special provision, holiday entitlement will similarly accrue while someone is on paternity leave. We do not intend to introduce special provisions, because we intend for holiday rights to accrue as I described.

The hon. Gentleman seems to take the Law Society's view that there is a problem, but I am not aware of one. If he is suggesting that we should take a power that enables us to deprive those on paternity leave of the right that we are discussing, I profoundly disagree. Helpfully, I have been handed the Law Society brief, but it will probably confuse me rather than help me. It is not clear whether the hon. Gentleman is suggesting what I outlined, but that would not be right. Men on paternity leave would be left in a different position from that of women on maternity leave.

The second issue is the introduction of a power that enables us to provide for the treatment of bonuses that arise during a period of paternity leave. The amendment is simply unnecessary. We have the power to regulate on what should and should not be considered as terms and conditions of employment that subsist during paternity leave. It is also clear from new section 80C(5)(b) that those terms and conditions will not include those to do with remuneration. Bonuses normally constitute remuneration, so the payment of bonuses, which are ex gratia payments beyond those that the employee expects to receive under their contract, will remain a matter for the employer's discretion.

I counsel the hon. Gentleman against getting involved in this area. I have worked under and negotiated bonus schemes. Sometimes they pay people at work and when they are on maternity leave or paternity leave in those organisations that have agreements; sometimes they do not. There are different types of bonus scheme. We should not interfere in that matter with the regulations, which is why we specifically excluded it from the terms and conditions in the new section. The hon. Gentleman should withdraw the amendment. If there is a problem with maternity leave provisions, we are unaware of it.

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