Draft Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008

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Mr. McFadden: The hon. Member for Huntingdon talked about a ratchet effect and increased costs, and referred to the impact assessment. If we do not amend the regulations in line with the Sex Discrimination Act and the court judgment to which he referred, we will leave employers open to discrimination law cases that can incur unlimited compensation. Employers want clarity, and the regulations will provide that in respect of the responsibilities and non-pay contractual benefits to which they refer.
We have heard time and again about regulations and costs. Of course, that is a legitimate consideration. We must bear in mind the burden of costs on business, but it is important to remember when talking about statutory maternity pay that the majority of the costs are reclaimed from the Exchequer. Furthermore, there is extra provision for small businesses with national insurance contributions of less than some £40,000 per year. There is a recognition that business is reimbursed for the cost of the changes, but the importance of clarity is not to be diminished.
Mr. John Baron (Billericay) (Con): The Minister is right to talk about clarity, but will he accept that the figure produced by the British Chambers of Commerce of 14 regulations a day has a disproportionate impact, particularly on smaller businesses? Will he at least have a look at that impact and assess the effect of regulations, especially on small businesses? We accept that many regulations are gold-plating of European Union regulations but, when small businesses are struggling in such an environment, that number of regulations has a disproportionately negative effect.
Mr. McFadden: I hesitate to repeat the debate that we had yesterday on the Employment Bill, but the hon. Gentleman tempts me down that road. Not all the regulations on the list of the British Chambers of Commerce should be considered burdensome. For example, one such regulation—I used this example in the House yesterday—concerns access for disabled people to transport. Does the hon. Gentleman think that a burden on business? If so, I have to disagree. It is a regulation, but we cannot define all such regulations as burdens on business.
The Chairman: Order. Will the Minister return to the topic of the order: the alignment of non-pay terms and conditions for employees on maternity leave?
Mr. Baron rose—
Mr. McFadden: I will not give way in case we stray too far from the path of righteousness as far as these regulations are concerned, but I should point out that small employers can recover 104.5 per cent. of the cost of statutory maternity pay from the state.
The hon. Member for Solihull talked about several things, including equality.
Mr. Djanogly: May I return the Minister to the issue of gold-plating? The question that I put—perhaps not very well—was in relation to the Sex Discrimination Act 1975. Were the changes made to that Act under the Sex Discrimination Act 1975 (Amendment) Regulations 2008 gold-plating of European regulation? Were they required to be put in place for any reason, or was it Government policy to put them in place? If those regulations had not existed, would we need to be here today?
Mr. McFadden: The changes to the Sex Discrimination Act to which the hon. Gentleman referred are as a result of the High Court challenge—the Equal Opportunities Commission v. the Department of Trade and Industry, as it was then called. The changes that we are debating today bring the additional maternity and adoption leave regulations in line with those changes. The consequence of not making such changes—I put the question back to the hon. Gentleman if he is saying that he would not make those changes—would be to leave employers open to challenges on discrimination grounds, which could leave them open to a potentially unlimited liability fine. Employers would not welcome that, which is why clarity is important.
Let me turn to the question of equality between men and women, raised by the hon. Member for Solihull. There is a legitimate debate to be had about flexibility in parental leave. It is also important to recognise that the health of the mother is an issue, which can lead to maternity leave being taken by the mother, certainly in the early period. However, adoption leave incorporates the flexibility that the hon. Lady talked about. Either parent can take adoption leave because we are not dealing with the mother of a newborn child.
Lorely Burt: I am not following the Minister’s argument terribly well. I propose that the father and mother should make the decision between themselves, taking into account a whole variety of health and domestic circumstances. While the health of the mother is clearly important, surely the Minister is not justifying 52 weeks’ leave purely on the ground of the health of the mother?
Mr. McFadden: We talk about 52 weeks, and there may be a debate to be had about a period beyond a certain time. Maternity leave is set out in this way because the health of the mother is a factor, particularly in the early period after her baby is born. That is why there is a difference and more flexibility in adoption leave. In later periods, there is a legitimate debate about flexibility.
There is another issue that was not mentioned by the hon. Lady when she talked about this provision being a bit rigid. Predictability for the employer must be a consideration, and that is why notice periods are important. We talk about flexibility and swapping periods of leave, and allowing the employer to know where they stand is a legitimate part of that. We have heard about the help that the Government have given in extending notice periods—that is fair and right because the employer has a legitimate interest.
The Government have extended the help available to parents of newborn children in a positive way. In 1997, 12 weeks of statutory maternity pay were available at the rate of £55.70. The hon. Lady says that the figure is below the minimum wage—it is now 33 weeks at £117. The gain per mother is more than £3,000, which is substantial progress in terms of supporting families.
Lorely Burt: I appreciate the Minister’s point about flexibility for the family not necessarily being good for the employer. However, that flexibility could be structured so that it does not have to be a swap-about arrangement; it should be in full agreement with the mother’s employer and that of the father. The Minister is institutionalising discrimination against women in the workplace. If only the woman can take maternity leave—
The Chairman: Order. That is a long intervention and is not on the topic of the statutory instrument, which is non-pay terms and conditions when employees are on maternity leave, additional maternity leave, adoption leave and additional adoption leave. It is not on paternity leave or anything that is not in the regulations.
Mr. McFadden: The precise purpose of the regulations is to avoid discrimination, and they are in response to changes made to the Sex Discrimination Act. I disagree with the characterisation of the Government’s position by the hon. Member for Solihull. Taking your guidance, Mr. Taylor, I will not go over that again, and on that note, I commend the regulations to the Committee.
Question put and agreed to.
That the Committee has considered the draft Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008.
Committee rose at three minutes past Five o’clock.
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Prepared 16 July 2008