Employment Bill

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Alan Johnson: We shall consider that. Maternity leave is a different situation altogether. A woman who has left employment is entitled to continue receiving maternity pay, so there is a difference between that and paternity leave, for all sorts of reasons that I will not go into.

We have to be sure about the language. I commended the amendment because it would be wrong to say that it has a drafting fault. We need to be sure that we have dealt with the issue. If not, we will either table the hon. Gentleman's amendment, giving him the credit and royalties that he deserves, or a similar amendment that will clarify what we are saying. He has put his finger on a very genuine concern.

Mr. Hammond: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 130, in page 5, line 32, leave out from ''conditions'' to end of line 11 on page 6 and insert:

    ''for leave under section 80A of the Employment Rights Act 1996 he shall be entitled in accordance with the following provisions of this Part to payments to be known as 'statutory paternity pay'.''

The Chairman: With this it will be convenient to discuss the following amendments: No. 124, in page 5, line 44, leave out

    ''ceased to work for the employer''

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and insert:

    ''exercised his right to take leave under section 80A of the Employment Rights Act 1996''.

No. 131, in page 6, line 14, leave out from ''conditions'' to end of line 3 on page 7 and insert:

    ''for leave under section 80B of the Employment Rights Act 1996 he shall be entitled in accordance with the following provisions of this Part to payments to be known as 'statutory paternity pay'.''

Mr. Hammond: The amendments deal with the complex architecture of the Bill. I hope that the Committee will bear with me if it does not seem crystal clear at first. Amendment No. 130 deals with the perceived problem in relation to new section 80A. Amendment No. 131 deals with the same problem in relation to new section 80B. New section 80A provides that regulations will determine various factors, such as the number of weeks of continuous employment that entitle an employee to statutory leave. New section 171ZA cites in subsection (2)(b) a requirement of 26 weeks. The regulation made under new section 80A may not say 26 weeks. My understanding was that the statutory paternity pay regime was intended to mesh exactly with the statutory paternity leave regime, so that someone entitled to statutory leave would be entitled to statutory pay, except where he was below the earnings threshold, should the hon. Gentleman's amendment not be successful. In most circumstances, the two regimes would operate in a similar way.

However, new section 80A leaves regulations to determine the number of weeks, whereas new section 171ZA specifies the number, so we could have a difference between the two regimes. The Minister will no doubt say that he intends to make a regulation under new section 80A that specifies 26 weeks. That is fine, but the fact that secondary legislation could change the reference in one section but not the reference in the corresponding section about pay shows that the drafting is not perfect.

Instead of referring to the 26-week criterion for eligibility for pay, the Bill should refer to the period specified in regulations under new sections 80A and 80B, so that there is always perfect symmetry between the two, whatever the regulations made under those sections might say from time to time.

Amendment No. 124 relates to a slightly different point. New section 171ZA(2)(c) uses the phrase ''ceased to work''. In a way, we have had this debate already, but I find that language thoroughly misleading. I understand that it is in the Bill simply because of the historical architecture of the legislation. However, it is clear that someone in the circumstances under discussion has not ceased to work for the employer; he has simply exercised the right to take leave. It is rather dangerous to go down that route, because in every normal sense of the word the person continues to work for the employer and is merely resting during two weeks of statutory leave.

If I am missing something, I am certain that the Minister will tell me, but notwithstanding the horrible language of the underlying Act, it would be sensible to remove the phrase

    ''ceased to work for the employer''

and insert instead

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    ''exercised his right to take leave under section 80A of the Employment Rights Act 1996''.

That would be entirely clear.

The Minister might even think about tabling an amendment or new clause later that would clarify the matter wherever the Employment Rights Act uses the phrase ''ceased to work'', if it is misleading. That would make a clear distinction between the separate cases. The Minister gave an example whereby, under the maternity regime, someone who had genuinely ceased to work for an employer would be eligible for maternity pay. However, under the envisaged regime, no one who has ceased to work in the everyday sense of the word will be entitled to paternity pay, but someone who has merely exercised his entitlement to leave will be so entitled.

Alan Johnson: These pretty large amendments would delete several pages of the Bill at a stroke and put a single sentence in their place. Are we debating the group that includes amendment No. 124?

The Chairman: Let me help the Minister. We are debating amendments Nos. 130, 124 and 131, which relate to clause 2 and pages 5 and 6 of the Bill.

Alan Johnson: I thought that the amendments related to pages 5 to 8, but there may be a misprint somewhere.

Mr. Hammond: I am looking at the amendment sheet, and I am confused. The amendment that I thought I was speaking to may be different from the amendment that I have actually spoken to. Did someone say something about a misprint?

The Chairman: Apparently, on the original amendment paper it was page 8, but on today's paper it is page 6. The page number depends on the version you are working from. I shall find out why that has happened; I am sure that there is an explanation. Is the Minister happy with that?

Alan Johnson: I am not sure whether I should reply to the hon. Gentleman's point.

The Chairman: We could move to amendment No. 124 and come back to amendment No. 130 later, if the Committee agrees; it is slightly out of order. Shall we do that? It would probably make sense.

Alan Johnson: It may be helpful if I go back. The amendments are pretty large; they delete two pages of the Bill. Superficially, that is attractive—I am all for cutting the size of the Bill—but the attempts of the hon. Member for Runnymede and Weybridge to simplify life might complicate it.

The amendments address an issue that is relevant to existing maternity rights and to the new paternity and adoption rights. We have separate legislative regimes governing entitlements to leave and entitlements to pay. The amendments would harmonise definitions and eligibility criteria for paternity rights such that the Bill's provisions for leave would also serve for pay. If the hon. Gentleman's point is that life would be much simpler with one set of provisions in primary legislation dealing with both pay and leave issues, I

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would say amen to that. However, the task of getting from where we are now to where we might like to be will not be simple; it certainly will not be as simple as the amendments imply.

It is worth repeating that our starting point in designing the new paternity and adoption regimes was existing maternity rights. There are reasons why maternity pay is currently covered by social security law—that is where first it came from—and why it operates with the definitions and concepts that are appropriate in that area. It is of fundamental importance that the social security system should provide for the needs of new mothers in a range of situations, not just for those who qualify for leave.

There are health and safety arguments for allowing women to take time off work after the birth of a child; they are a key reason for the existence of maternity allowance. Statutory maternity pay plugs into the same concerns, and legislation on maternity pay, maternity allowance and several other benefits necessarily and rightly interconnect at many points to ensure full protection for mothers. It would be difficult and delicate, if not impossible, to take maternity pay out of the social security nexus in which it sits and move it elsewhere.

Employers deal with maternity payments through their payroll for those women who are ''employed earners'' for other pay administration purposes, such as national insurance contributions. In practical terms there may be little difference between an ''employed earner'' for pay purposes, and an ''employee'' for the purposes of time-off rights under employment law, but they are technically different. It would be possible to harmonise definitions so that employment law, social security law and tax law operated with the same concepts and definitions, but it would be hideously complex.

3.15 pm

Mr. Hammond: I should clarify that the amendment would not delete several pages of the Bill. It would remove the large part of new section 171ZA. That new section defines the conditions that have to be met for entitlement to statutory paternity pay. I suggest that the entitlement should be defined in the Social Security Contributions and Benefits Act 1992 by reference to the Employment Rights Act 1996. Someone entitled to a period of statutory paternity leave should be entitled to statutory paternity pay during that period. Referring to the definitions in the other Act is a neat way of ensuring symmetry without further complications. The amendment was designed to address that.

The Government intended that a person entitled to statutory paternity leave would be entitled to statutory paternity pay with the exception of those who fall below the lower earnings limit for national insurance contributions. If that is not the case, and the Minister envisages other groups who are entitled to leave but

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not pay, it would be useful if he could explain who they are. I apologise, Mr. Conway, I forgot that that was an intervention.

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