Employment Bill

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Alan Johnson: Yes. It would not be right to debar people in that situation from taking paternity leave for each child. Social security legislation has had to deal with polygamous marriages for some time. This is not the first time that such arrangements have been regulated by Government. Perhaps a previous Minister has been asked these questions on other Bills. We would obviously talk closely to the people who dealt with this in the past before we framed any regulations. We would have to ensure that we got it right. In general, the father should be entitled to paternity leave however many children were born, provided that he met the qualifications set out elsewhere in the regulations, particularly the parental qualifications.

Mr. Hammond: Would the Minister find it convenient now to answer the question asked by the hon. Member for Wolverhampton, South-West (Rob Marris), which is relevant to this issue?

Alan Johnson: Yes, that concerns multiple births. There we simply mirror the maternity leave regulations where there is one period of leave. That has been the procedure for a long time under maternity leave. We see no reason to change it for paternity leave.

Mr. Hammond: So a person who is in two simultaneous relationships, where two mothers give birth on the same day to two children is entitled to two periods of leave, but a person in a monogamous relationship whose partner gives birth on the same day

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to twins is entitled to only one period of leave. That does not sound equitable. It seems to send a rather rum signal.

Alan Johnson: One reason for paternity leave is to help the mother. In the first case, there are two mothers, and in the second, only one. That one mother receives one period of maternity leave. The hon. Gentleman raises important points. They are on the record. They need to be considered because there are complications that the regulations must address. Our principles, however, are basically sound.

Rob Marris: To take a more extreme, but not unknown, example, if a mother gives birth to quintuplets, one can envisage that a period of two weeks' paternity leave would be insufficient for the father. I urge the Minister to reconsider the twins clause. By parallel with maternity leave, I can see that there should not necessarily be 10 weeks' paid paternity leave in the case of quintuplets, but most of our constituents would recognise that if they were fortunate enough to father quintuplets, two weeks would be insufficient.

Alan Johnson: I will take those points into account. Generally we want to mirror the arrangements that have served us well for maternity leave for a long time. We do not want to have different arrangements for fathers. In some cases they have to be different, but we want to mirror the maternity arrangements as closely as we can.

The next question was whether we intend to ratchet up the two weeks. We do not. We consulted widely on that, and we have no plans to increase the period. We have been advised by the hon. Member for Runnymede and Weybridge on several occasions to leave some flexibility. The reason for specifying at least two weeks is that it gives some licence for flexibility, although we have no plans to use it at the moment.

Mr. Hammond: Why say anything at all? The power to determine the period by regulation would give the Minister flexibility upwards, but it gives him flexibility downward too. He has chosen to remove his flexibility downwards, which inspires the he has a specific agenda. Has anything been said about the minimum level?

Alan Johnson: We do not intend to reduce it downwards. That reminds me of the argument about the minimum wage. Do we intend to reduce the four weeks of paid holiday? No, once rights are established, we intend them to remain. As to the future, we have no plans for the level to come down, though changes may occur in the unforeseen future.

What about the meaning of remuneration? Subject to consultation, we intend to make the same provision that applies to maternity leave. Thus, sums payable to an employee by way of wages or salary are the definition of remuneration.

Mr. Hammond: That seems a very sensible definition, so why is it not built into the Bill?

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Alan Johnson: I do not know, but I will think about it and get back to the hon. Gentleman, who makes a fair point.

On self-certification and notice, the hon. Gentleman asked whether a standard form would apply. Subject to consultation, we intend to provide not a standard form but a model or guide for people to use. A standard form under the usual bureaucratic arrangements is unnecessary, but we shall offer a model certificate, which we will discuss with employers' groups.

I was asked about the use of regulations on a week's pay. We expect to make some provision for maternity and paternal leave under regulation 22, but a week's leave may not count to determine average pay for the purposes of the clause.

Mr. Hammond: The Minister makes an interesting reference to regulation 22. Does he have a set of draft regulations in front of him, to which the rest of the Committee is not privy?

Alan Johnson: I hope not. As I said in the debate on amendment No. 146, regulation 22 of the Maternity and Parental Leave etc. Regulations 1999 provides for how many weeks of leave are relevant for the purposes of calculating a week's pay for an employee. The amount arrived at in this way is used in calculating redundancy or unfair dismissal compensation and for various other purposes. We intend to mirror that provision in existing legislation. If any draft regulations pertaining to the clause were available, I would be pleased to see them. I hope that I have answered all seven questions.

Mr. Hammond: What of the penalties under new section 80C, 80D and 80E? I asked the Minister whether failure would be met by a financial penalty.

Alan Johnson: I cannot remember at the moment what ideas we have for introducing penalties. I shall think further on the point for a second. The hon. Gentleman is asking what penalties will apply if the provisions are not carried out.

Mr. Hammond: While the Minister is thinking about that, I remind him that I asked about paragraph (f) of proposed new section 80E. What modifications will be required to chapter 2 of part 14 in respect of the calculation of a week's pay?

Alan Johnson: If an employee claims that he is entitled to or takes paternity leave when he is not entitled, any penalty would be a disciplinary matter for his employer, which is a sensible way of addressing the point. On new section 80E, I think that I just provided an answer, which is regulation 22 of the Maternity and Parental Leave etc. Regulations 1999.

Mr. Hammond: I am still a little curious. Do we deduce from the Minister's reply that no offence is committed under new section 80E(c) and (d) by failure to produce evidence, keep records or comply with other procedural requirements? Clearly no offence is committed by failure to give a notice, but is there an offence in failure to act in accordance with a notice

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under paragraph (d)? I had anticipated that the Minister would say that an employer who failed to comply with some procedures would be subject to a penalty. Is that not the case? If we are talking merely about internal disciplinary procedure, why will regulations prescribe the consequences of such failures? Would that not be a matter only for the employer and employee?

Alan Johnson: There will be no offence in respect of leave, although there will be penalties in respect of pay.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

Statutory paternity pay

Mr. Hammond: I beg to move amendment No. 123, in page 5, line 31, leave out 'or has been'.

This is a probing amendment. Is the inclusion of ''or has been'' intended to create an obligation on an former employer, or is the language merely designed to fit the tortuous language of the Social Security Contributions and Benefits Act 1992, which expects that someone who has gone on leave for two weeks has ceased to work for an employer? That is not my understanding of the term. Is there any substance to the wording, or is it merely designed to comply with the architecture of this part of the Bill?

Alan Johnson: No, there is no substance to it. In fact, the amendment would make it crystal clear that former employees, as opposed to current employees, would not benefit from the right to pay. That is the correct approach. If an employee leaves his employer many weeks before his paternity pay period—he might have given notice, but then leaves to start a new job or just leaves—it is not right for his previous employer to be obliged to make provision for that payroll relationship when the rest of the relationship has been cut asunder.

The amendment suggests that it might not be clear from the Bill that that is what we intend. I am not sure whether the phrase marries up with the language in the 1992 Act, but if there is any doubt that we have not conveyed the correct intention—I have a few qualms about it myself—we will examine it carefully.

Rob Marris: Will my hon. Friend reconsider lines 44 and 45 on page 5, which are the reason for use of the past tense in line 31? If the Minister has a moment to examine that, it might show why the phrases that the hon. Member for Runnymede and Weybridge wants to remove are in the Bill.

Alan Johnson: I accept that, but it is part of the problem. The idea could be conveyed that once the employee has left employment, the employer still has an obligation for statutory paternity pay. We need to re-examine that, and the amendment or something similar may be needed. We want to be absolutely sure that we are not creating problems in other areas,

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particularly the legislation that the hon. Gentleman mentions. I hope that he will withdraw the amendment.

3 pm

Mr. Hammond: The legislation that I mentioned is the Act into which we are inserting the clause: it is not some different legislation. As the Minister says, the problem is that the Social Security Contributions and Benefits Act 1992 uses peculiar language that regards someone enjoying a period of statutory leave as someone who has ceased to work for an employer. That might pass muster if we are talking about maternity leave, which is quite long, but it is absurd and misleading in the case of a two-week period of paternity leave. No one would describe someone taking two weeks off as having ceased to work for an employer. To make it a condition of eligibility for statutory pay that one must have ceased working for the employer, meaning sitting at home rather than the workplace, is arcane drafting language obscuring the intended purpose.

The Minister said at the beginning of his remarks that the amendment makes the Government's intention crystal clear, which differs in tone from his usual opening response to amendments. I would have thought that the amendment might commend itself to him. If we are all on the same wavelength as to what the clause is supposed to say, he might consider whether it actually does say it, and return with an appropriate amendment on Report. If he does not think it is necessary, we may do that.

 

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Prepared 10 January 2002