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Employment Bill

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Mr. Hammond: As the hon. Gentleman is lawyer, perhaps he can explain to those of us who are not the concept of a discretionary entitlement.

Norman Lamb: My language was perhaps insufficiently precise—discretionary benefits might be a better description. In most cases, employees benefit from certain contractual entitlements and other discretionary benefits, which employers can offer or withdraw at their discretion.

Mr. Hammond: Such as not giving leave?

Norman Lamb: The clause makes the point that discretionary benefits will remain in place during maternity leave or paternity leave. My point is that the provision seems to work reasonably effectively for maternity leave. The legislation is about trying to provide benefits for fathers for a very short period of paternity leave that are comparable to those enjoyed by mothers during maternity leave. It seems sensible to work on that basis.

Mr. Prisk: The Minister has failed clearly to define ''matters connected'', and as the hon. Member for North Norfolk (Norman Lamb) said, the language is tortuous and unclear. If our aim is to support the benefits arising from the terms and conditions of

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employment, it would make sense to focus on that. The provision may be consistent with previous measures relating to statutory maternity leave, but two wrongs do not make a right. The provision is not automatically right simply because a similar mistake was made in the past.

Helen Jones (Warrington, North): I am listening carefully to the hon. Gentleman. Is he saying that the inclusion of similar provisions in maternity leave legislation is wrong, and that his party is committed to withdrawing them?

Mr. Prisk: No one has satisfactorily defined what ''matters connected'' actually means, and that is what I am trying to do.

Norman Lamb: The point made by the hon. Member for Warrington, North (Helen Jones) is absolutely right. The hon. Gentleman is arguing that the provision is wrong not only for paternity leave but for maternity leave. Is he arguing, therefore, that we should withdraw from women the right to maintain discretionary benefits during maternity leave? If so, he should make that clear.

Mr. Prisk: We are trying to ensure clarity in the law, so that there is the minimum opportunity for disputes between employer and employee. My central concern is the great danger that use of a term such as ''matters connected'' will merely increase the propensity for dispute.

Mr. Hammond: We should be concerned about the danger, with which the next amendment also deals, of creating a world in which people on leave, for whatever reason, are in a better position that those who turn up for work. As I understand it, we are talking about discretionary benefits that the employer is free to withdraw, at his discretion, from one day to the next—except, it seems, when a person is on leave. I am not sure that we want to create a world in which those on leave are in a more secure position than those who are not.

Mr. Prisk: I agree. Where, other than in the contract, do terms and conditions of employment exist? It is that lack of clarity that poses the danger.

Mrs. Betty Williams (Conwy): I am sure that the hon. Member for Hertford and Stortford is grateful to the hon. Member for Runnymede and Weybridge for trying to rescue him. The hon. Member for Hertford and Stortford said that two wrongs do not make a right, and my hon. Friend the Member for Warrington, North is waiting for a reply to her question. Do you want to dispose of the existing provision for maternity leave? What exactly are you saying?

The Chairman: Order. I am not saying anything.

Mrs. Williams: I am sorry. Will the hon. Gentleman clarify what he means? He said that two wrongs do not make a right, and the hon. Member for Runnymede and Weybridge tried to rescue him from that big mistake.

Mr. Prisk: I am grateful, Mr. Amess, for your generosity in allowing me to continue. It is important

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to remember that the provision to which the hon. Lady refers dates back to 1992 and was introduced by a Conservative Government. The amendment seeks simply to ensure clarity in the Bill.

Judy Mallaber: I, too, in the light of his contribution, would like to know whether the hon. Gentleman has made a U-turn on the previous Conservative Government's policy, as implemented in the original legislation. Does he want to remove the provision from maternity leave legislation?

Mr. Prisk: Such clarity as is lacking relates to the phrase ''matters connected'', and that is what I hope we can deal with.

Mr. Hammond: This unusually inclusive debate has had more participants than any other in our proceedings, although it has probably generated more heat than light.

I was interested in the observation of the hon. Member for North Norfolk that members of the Committee seem keen to score points. I know that North Norfolk is a long way away from the rest of the country, but those of us who have dealt with other members of his party have not noticed that they are particularly reticent about trying to score points. We will take no lectures from a Liberal Democrat on that issue.

My hon. Friend the Member for Hertford and Stortford and I have tried to point out that, at the beginning of this debate, at least, it was not entirely clear what is meant by

    ''matters connected with an employee's employment''

that do not arise under his contract of employment. However, a few examples given subsequently have made matters clearer. It appears that the Minister has tried to establish the concept, with which I would not disagree, that no one should suffer detriment as a result of taking paternity leave or adoption leave. That is not what he has achieved, however.

Let us consider the example of a company, of which I know many, that customarily provides free sandwiches for every employee at lunchtime. Let us say that that benefit was withdrawn while an employee was on paternity leave—I accept that such leave lasts for only two weeks and maternity leave lasts much longer. The employer might say, ''This is crazy. The sandwich bill has gone through the roof and I'm not doing it any more—no more sandwiches!'' Under the Bill, he could do that, except in respect of the person who is away on leave. If the Bill said that a person who is absent on leave under this section should not suffer any detriment as a result of being absent on leave, that is to say that he should not be treated any worse than his workmates who are still at work, I could accept it. Amendment No. 118 will address the concern that that creates a situation in which people who are absent are protected in a way in which people who remain are not.

Rob Marris: Free sandwiches are a helpful example, certainly more helpful than the hon. Gentleman's obsession with car parking. Section 80C(1)(a) concerns

    ''terms and conditions of employment which would have applied if he had not been absent''.

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If an employer decides that the sandwich bill has gone through the roof on the Friday of the first week that an employee is absent on paternity leave, and states that from the following Monday, which would be the second Monday of the paternity leave, no one is getting free sandwiches, that covers the person on paternity leave. That is because the right arises under the terms and conditions that would have applied had the person not been absent. If an employee on paternity leave had been working on that Friday, he would not have had his free sandwiches from Monday, which means that his position is no worse.

Mr. Hammond: That is extremely helpful, and no doubt exactly what the Minister was about to say. While we are closing this debate, I invite the hon. Gentleman to turn his attention to amendment No. 118 to see whether the same argument can be adduced. His intervention has been helpful, and I shall be reassured if the Minister can confirm that that is how we should interpret subsection (5)(a).

Alan Johnson: What a fascinating exchange. I can confirm that interpretation, which I gave as an example.

The hon. Member for Hertford and Stortford said that he remains unconvinced because the phrase ''matters connected'' has not been explained. We have come up with three ''matters connected'', and I do not know how many more he might want. The thrust of his contribution was that we are making a mistake, but I never said that. He then pointed out that the Bill relates to Conservative legislation introduced in 1992, which was helpful because I had forgotten that. Of all the things that happened between 1979 and 1997, I would not criticise that legislation because it has caused us no problems.

Mr. Hammond: I bet you did at the time.

Alan Johnson: I bet we did not. For those anoraks who want to check the record, we probably did not criticise that aspect of maternity leave.

In responding to an intervention, I made it clear that we are discussing non-contractual terms of employment that concern issues such as car-parking spaces and membership of a gym. If the car park were removed while an individual was on paternity leave, or, as will be the case from 2003, while a woman was on a year's maternity leave, that individual's right to parking would also be removed.

My wife works at an institute of psychiatry. While she was on maternity leave a new block was built on the car park, which no longer exists. She could not have retained her right to the parking space because she was away from work. Similarly, if an employer who finds that the provision of free sandwiches has become onerous and that the company looks like it will go bust if it continues to provide them decides to cancel them for everybody, they are cancelled for a man on paternity leave. I am happy to give that assurance, and I hope that at the end of an enjoyable and heated debate—lots of Calvin Klein's were getting into twists—the hon. Gentleman can accept that there is no need to push the amendment.

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