Employment Bill

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Norman Lamb: Does the hon. Gentleman agree that one route that may well suit both parties and be within the terms of the legislation, although the impossible would make it impossible, would be for the Department to reach an agreement that a change of working hours—the half-hour later arrival time because a parent wants to drop a child off at

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school—could apply for the next year or until the child was old enough. Then the parties could agree that that would apply for a specific time before reverting back. Does that seem possible?

Mr. Hammond: Yes it does, and I do not think it is incompatible with the amendment. The amendment says that any application made

    ''shall be taken to be an application permanently to change the employee's terms and conditions of employment''.

In other words, the document that comprises the terms and conditions of employment will be changed. It can be changed to say that the hours of work until 31 December 2002 shall be 9.30 to 5.30 and from 1 January 2003 shall be 8.30 to 4.30. There is nothing incompatible with the amendment. I am seeking to avoid employers having to keep track of myriad temporary arrangements that are not documented in concrete but are short-period wavers of the established terms and conditions of employment rather than a change to them. My reading of the Bill is that the Government intend that to be an opportunity for an employee to change their terms and conditions of employment, not to have the employer agree a temporary derogation from or variation of them.

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I am interested to hear what the Minister has to say. We have offered an amendment, but I accept that the matter could be properly dealt with in regulations rather than in the Bill and perhaps he will say that.

Mr. Mark Prisk (Hertford and Stortford): Does my hon. Friend agree with me and the Confederation of British Industry that, given this complexity, it is important that the Government give small enterprises guidance? Does he also agree that it would be helpful for the Minister to tell the Committee later that that is the Government's intention?

Mr. Hammond: I hope that the Minister has heard my hon. Friend's remarks. He is nodding, so he clearly thinks that it would be useful for him to give the Committee that assurance, and we look forward to it.

Amendment (o) would ensure that the Bill specified the continuous period of employment requirement. It is not satisfactory for the Secretary of State to regulate who shall and shall not be eligible by virtue of their continuous period of employment. The notes make it clear that 26 weeks is the intended period, but the Bill gives us rather mixed signals about whether the continuous employment period should be in the Bill or in regulations. Thinking back to statutory paternity leave provisions, I seem to remember that leave was dealt with in the Bill and pay was to be dealt with in regulations, or perhaps it was the other way round. The amendment suggests that the employment period needs to be specified in the Bill to make it crystal clear.

I reiterate what I said about the drafting of proposed new section 80G. The wording is little short of bizarre, if I dare use that word. It simply does not look like a statute. It looks like what it is—the verbatim text of the report. It states:

    ''An employer to whom an application under section 80F is made—

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    (a) shall deal with the application in accordance with regulations made by the Secretary of State—''

that is not a problem—


    (b) shall only refuse the application because he considers that one or more of the following grounds applies''

That should not be a problem either, but the way in which the grounds have been drafted simply does not make sense; it is not English. The first ground is

    ''the burden of additional costs'',

but that cannot be a ground that applies.

Amendment (p) is designed to change the wording, which would improve the situation but would not solve the problem completely. I am interested to hear the Minister's overall view of the provision's drafting. The amendment would replace the words

    ''the burden of additional costs''

with ''material additional costs'', so that that was the ground.

I am getting ahead of myself because I have missed out amendment (t), which would help the whole provision to make sense. It would make subsection (1) read, ''An employer . . . shall only refuse the application because he reasonably considers that to comply with the request in the application would result in him facing one or more of'' the items in the list. The first would be ''material additional costs''. That is the plain English way of specifying that, and it tells us what we want to know. My interpretation of the English language is that ''the burden of additional costs'' is not an appropriate phrase to use in the structure of this rather long subsection.

Whether the phrase is ''the burden of additional costs'' or ''material additional costs'' depends on how serious that burden must be. Presumably, the Minister would say that something that cost the employer an extra four pence a week would not be a ground for refusing an application, and I would agree with him. However, the issue is rather subjective, and I seek to address that by using the term ''material''. The ground for refusal would therefore be that ''material additional costs'' would be incurred as a result of accepting the application. ''Material'' is not a precise word, but it is well known to the law, the courts and, I suspect, the employment tribunal. I would hazard that the term ''material additional costs'' is more susceptible to proper interpretation than ''the burden of additional costs'', which does not specify how much burden.

Amendment (q) would amend the wording of sub-paragraph (iii), which is curious. The sub-paragraph states:

    ''inability to re-organise work among existing staff''.

We have had many arguments about the use of the word ''worker'' or ''employee'', but I do not recall a debate about the use of the word ''staff''. I do not claim to be an expert on every last word of the drafting of the Employment Rights Act 1996, but as far as I am aware, the word ''staff'' does not occur in the legislation. It certainly does not fit comfortably in this context. The sub-paragraph should say ''inability to re-organise work among existing employees''.

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Perhaps the Minister wants to get on to the territory of ''existing workers'', but ''existing staff'' does not make any sense. The word ''staff'' appears to be here simply because it was used in the task force report and has been copied without careful consideration and without reconciling it to the language of the statute.

Amendment (r) would also remove the word ''staff'' from sub-paragraph (iv), which reads:

    ''inability to recruit additional staff''

and make it ''inability to recruit additional employees''.

The amendment goes further by inserting ''employees of similar capability on similar terms and conditions''. The issue is not the inability to recruit additional staff, but the ability of an employer to accommodate a request from an employee to start working part time. The question is whether the employer can find another suitable person with the same skills at the same rates of pay and the same conditions of employment to do the other half of the job if it is a continuous-cover job such as in a shop or a bank—not that there are many banks left that have people sitting at counters. The amendment would allow the employer to cite as a ground for refusal his inability to recruit appropriate staff to fill any gap left by the request for flexible working.

Amendment (s) addresses the wording of sub-paragraph (viii). Paragraph (b) states that the employer

    ''shall only refuse the application because he considers that one or more of the following grounds applies—

    (viii) planned structural changes''.

The employer refuses the application because the ground ''planned structural changes'' applies. That is not English and does not make sense. It is not meant to say that any employer who plans a structural change can refuse an application. I do not suggest that the wording of the amendment is perfect, but the sub-paragraph is meant to say that the application is incompatible with planned structural changes in the workplace. We inserted the words ''incompatibility with'' in the hope that the Minister would acknowledge that there is a problem.

My preferred solution is to deal with all those problems in amendments (p), (q), (r), (s), (t) and (u). Amendment (u) strikes out the ubiquitous provision

    ''such other grounds as the Secretary of State may specify by regulations''.

Again we need to know what we are legislating for. We cannot give the Secretary of State the power to say that the employer can refuse an application on the ground that he got out of bed on the wrong side or had a bad breakfast that morning. This is supposed to be objective consideration of the way in which the application would affect the business. The ground in sub-paragraph (ix) is far too broad and needs to be removed and replaced by something more specific. We propose the wording

    ''or because he reasonably considers that he is entitled to refuse the application on such other grounds as the Secretary of State may specify in regulations''.

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We could have sought to delete sub-paragraph (ix) but the Minister would doubtless feel naked without a blanket provision—I do not want to get back to the Calvin Klein's. We need to get the language right and to introduce the concept of the employer's reasonable interpretation of those additional grounds. We have attempted to change the language without changing the overall architecture of subsection (1). I do not suggest that the Minister should open up the can of worms of rebalancing the grounds for refusal that the report indicated, but the language of the subsection needs a wholesale clean-up. To be honest, when I first saw the new clause, I half expected that the Minister would table a replacement subsection to tidy up the language.

I do not propose to comment on all the Liberal Democrat amendments, but I congratulate the hon. Member for North Norfolk on amendment (e). He has spotted a genuine error in the Bill. We will see if the Minister says different. That is the Liberal Democrat brownie point for the day. It is always good to see someone on the Liberal Democrat Benches in this Committee. It is especially good to see two people, although rare. My hon. Friend the Member for Wealden (Mr. Hendry) says that they are practising flexible working and job sharing. I should be interested to know whether they draw only half the salary.

Amendment (v) to subsection (2)(k) deals with an employee's right to be accompanied at a meeting with the employer under the provision. We are curious as to why paragraphs (n) and (m) refer to section 10 of the Employment Relations Act 1999, which deals with the right to be accompanied and variations to times of meetings and hearings because of the unavailability of the person accompanying. That reference makes it clear that the person accompanying can be a fellow employee, or a trade union official or representative. That is fine, but it is not what we are considering. Paragraphs (a) and (d) provide for the employee to have a right to be accompanied in meetings by a person of such description as the regulations may specify.

The explanatory notes show clearly that the Government do not intend to replicate section 10 of the 1996 Act. They state that employees may be accompanied by a friend. ''Friend'' is a broad term, and I am advised that it may effectively be anyone including—

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