Employment Bill

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Mr. Hammond: I am grateful to the Minister for trying to explain matters. I am still not sure that I have understood the logic of why subsections (2) and (4) do not mirror each other and I shall think about that.

An interesting point about the use of language is that complex situations in which we seek to satisfy conditions becomes almost more mathematical or logical than linguistic, and language serves us poorly. I am reminded of a short period many years ago when I was tortured by having to study formal logic and to present linguistic arguments in the form of formulas. It might be better to try to explain some of the provisions by reference to formulas instead of torturing the English language.

I am grateful to the Minister for trying to explain. I apologise if I am at fault in not understanding, but I shall try to understand what he has said and satisfy myself that symmetry between subsections (2) and (4) is not necessary. If I cannot do that, the Minister will hear from me again on Report.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 117, in page 4, line 26, leave out paragraph (a).

I hope that this is a simple probing amendment. Its purpose is to allow the Minister to explain the meaning of subsection (5)(a), because it is not clear to me. I hope that we shall discover that, again, it is torture of the English language and nothing more. It would be more sinister, however, if the Minister said that non-contractual terms of employment could be enforced when leave is taken. That would be disconcerting. It seems to me that paragraph (a) could imply that something that someone had enjoyed by virtue of their employment but which was not a contractual term of their employment could become a contractual term.

I shall give a flippant example. Someone who worked in Tesco in the High street might have been allowed routinely to park in a valuable reserved parking space while working. Would such a non-contractual but customary benefit of employment continue to be available during the absence? I can think of many perks that are non-contractual but which people, especially in smaller businesses, routinely enjoy when at work. I hope to establish that that is not what the Minister means. If that is

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what he means, non-enforceable benefits that people enjoy when working would become enforceable when they were not working. That would be odd and unsatisfactory.

Norman Lamb: I entirely agree. The Bill is using extremely tortuous language to refer to terms and conditions of employment, which most people regard as being the contractual terms of employment, as meaning a broader set of provisions than those contained in the contract of employment.

Will the Minister clarify two points? First, is this formulation the same as that used in existing maternity and parental leave legislation? Secondly, what sort of employment provisions are envisaged within the broader definition of the concept of terms and conditions of employment?

Mr. Mark Prisk (Hertford and Stortford): I support the amendment. Paragraph (a) is illogical. If it is intended to provide an absent parent with the benefits of the terms and conditions of their employment, where do those terms and conditions exist except in the contract of employment? The deathless term ''matters connected'' is so vague and grey that it is likely to cause more problems than the Minister intends.

My hon. Friend the Member for Runnymede and Weybridge mentioned car spaces. In any place of work, there are informal arrangements between employer and employee. The danger of widening the scope of the nature of arrangements for paternity leave is that it could well deter such informal relationships. Employers will worry that a whole range of ad hoc arrangements will suddenly be drawn into the statutory arena.

Will the Minister define exactly what ''matters connected'' means? If he cannot, does not that underline the need to withdraw the paragraph?

Alan Johnson: We are not always able to make such definitions, but we need to include the paragraph because it exactly mirrors the clause on maternity leave. As always, we have sought to reflect existing legislation. As far as we are aware, employers are generally happy about it.

I shall deal with the specific examples that hon. Members gave. The point of the provisions is that employees can come back to work and not lose non-contractual rights and privileges. In terms of car parking, they might not have a specific space, but be entitled to use the company car park. The hon. Member for Runnymede and Weybridge asked whether they could use it during the period of leave.

Norman Lamb: The Minister mentioned protecting the employee on returning to work, but subsection (1)(a) refers specifically to his entitlements during the period of leave.

Alan Johnson: I was coming to that. We are broadly looking to do both.

Whether a man on paternity leave would still have access to the car park depends on the rules of the company. If employees have the right to use it when on leave from work on holiday, as is generally the case—[Interruption.] The hon. Member for Runnymede and Weybridge says from a sedentary position that it is not

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generally the case, but it is. In all my experience, a company car park can be used not only when going to work, but in other circumstances. If that is not a non-contractual term of employment, the hon. Gentleman has a point. However, if it is such a term, a man taking paternity leave to help and support the mother may use the car park—for example, to get into town to do the shopping.

Mr. Prisk: If the employer takes on another member of staff to cover the period of the employee's absence, who will park where?

Alan Johnson: The same problem would arise if he was able to use the parking space when away on holiday. We are talking about two weeks of paternity leave.

Mr. Hammond: I accept that we are broadening the issue. However, in saying that we are just talking about two weeks of paternity leave, the Minister is implying, ''What the hell are you talking about? It's only two weeks.'' Yet, as he told us, the same provision applies to maternity leave, so we could be talking about a substantial period.

My hon. Friend the Member for Hertford and Stortford (Mr. Prisk) made a significant point. It may not matter at a factory in Hull where there is ample car parking space, but in central London the right to use a car parking space in order to perform one's functions at work is extremely valuable. If an employer had to find a temporary worker to fill a post during a lengthy period of maternity leave, it could create serious difficulties if the person on leave persistently sought to use the space that they had customarily used. It is not a trivial point.

Alan Johnson: The point may not be trivial, but it is totally unnecessary. The maternity leave provisions that the clause mirrors have been in place for some time, and they have not led to the end of civilisation as we know it. The hon. Gentleman is being unfair to employers. If an employer has a non-contractual term of employment that enables employees to use the car park at any time—on leave, on holiday, or whatever—why would he say, ''We will withdraw that entitlement from you because you are not on holiday, but on paternity leave, and restore it in two weeks' time''? It is widespread practice to have non-contractual terms of employment that allow for membership of a sports club or gym or use of a subsidised canteen whether one is on duty or off duty.

It would look strange if the provisions applied to maternity leave, but not to paternity leave. The hon. Member for Runnymede and Weybridge says that he is making a substantive point, but it did not register on our Richter scale at all when we consulted employers. They said, ''The best thing you could do for us is to make paternity leave absolutely consistent with maternity leave.'' We have tried to tidy up the provisions in order to do that, not least by harmonising the notice periods.

I urge the hon. Gentleman to withdraw the amendment, because it is unnecessary.

Norman Lamb: It makes sense that the provisions should mirror those for maternity leave. In any

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employment, myriad provisions have no contractual force, but are discretionary entitlements. The Bill provides that for the leave period of two weeks, everything relating to the employment remains in place—as it was before, so shall it be afterwards—subject to the point about remuneration. That has worked with maternity leave. When a woman goes off on maternity leave, it does not lead to chaos and a great battle over her parking space. In most cases, a person away on paternity leave will not want to drive into the factory car park; he will be shopping, looking after the baby, and so on.

Mr. Prisk: I am unclear about this. At the beginning of the debate, the hon. Gentleman was strongly in favour of the point that we were making; now he seems to have changed his mind.

Norman Lamb: There seems to be a propensity to try to score points all the time. I thought that the purpose of the Committee was to shed some light on the Bill, which is what I am trying to do. I raised two points. I asked for clarification on whether the Bill reflects existing provisions on maternity leave, and the Minister has confirmed that that is so. As I said, the language is tortuous. It is nonsense for terms and conditions of employment, which are normally taken to mean contractual terms, to mean something broader. Nevertheless, the Minister has confirmed that the language reflects existing legislation, and we should be pragmatic and apply the principle that, if it ain't broke, don't fix it.

Maternity leave provisions work. When a woman takes maternity leave, she continues to enjoy the discretionary entitlements that go with the job. The legal point is interesting, and the Minister might want to comment on it. If entitlements remain discretionary during maternity leave, can the employer withdraw them?

10.45 am

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