Clause
22
Financial
penalty for contravention of section
21
Mr.
Laws:
I beg to move amendment No. 172,
in
clause 22, page 11, line 30, after
‘has’ insert
‘knowingly’.
Borrowing
from the style of the hon. Member for South Holland and The Deepings, I
start by reminding everybody, from the explanatory notes, that clause
22
“provides for a local
education authority to serve a penalty notice on the employer and sets
out the circumstances in which the notice can be given. It provides for
the amount of the financial penalty to be determined by regulations,
and sets out the requirements for what is included in the
notice.”
Our amendment No. 172, which is modest but
succinct, in case the Minister chuckles too much, would insert
“knowingly” at line 30, and require that the imposition
of a financial penalty against the employer depend on them knowingly
having contravened section 21—in other words, knowingly having
taken on a young person aged 16 or 17 without them being in education
or
training.
Let me refer back to my
comments on clause 21. As the Minister has acknowledged, the employer
is asking for relatively modest confirmation from an employee of their
education and training status. Arguably, in exceptional cases, a young
person might forge a letter from an education or training provider to
demonstrate that they are compliant with the legislation, and the
employer might be completely unaware of that fact, or might not be able
to check. The implication of the Minister’s statement is that
they will not be required to do so and it will all be terribly easy,
with a nod and wink over a cup of coffee and a letter passed across a
desk, or some other easily given assurance.
My concern is whether, if a
young person forges a letter, gives incorrect information, or is on an
education or training course when they first take up their employment,
but ends up not being on that—perhaps because it collapses or
for some other reason—the employer will be penalised even though
they cannot have reasonably or knowingly been aware of that young
person’s circumstances. That is the issue on which we seek
clarification from the Minister.
Mr.
Hayes:
Let me give a word of support for the hon.
Gentleman’s amendment. It is important that we explore how high
the bar is to be set for local authorities to interpret an
employer’s culpability in these terms. The hon. Gentleman was
right to table the amendment because it allows us to probe the
matter.
It will be
quite possible for an employer to take on a young person who has
deceived them into thinking that he or she is involved in training. It
is important that we probe the Minister further because this is a
matter of concern for employers. We spoke a few moments ago about the
other concerns that employers have, and similarly it is particularly
important that we reassure small and medium-sized enterprises in this
regard.
Jim
Knight:
I am delighted to be probed on this particular
clause. I am absolutely clear that an employer would not receive a
financial penalty if they had checked that the young person had made
appropriate arrangements for training or education and were satisfied
with the evidence before allowing employment to
begin.
Clause 21(1)
states that employers should take
“all such steps as are reasonable
to ascertain, that the employee has made appropriate
arrangements”.
We will
make it clear in guidance what those reasonable steps should be. I am
clear that there will be no requirement on the employer to verify the
evidence. If it is a forgery, the local authority should act on the
young person, not the employer, and we will seek to make that clear. I
hope that that helps the
Committee.
Accepting
the amendment, however, could have undesirable consequences. It would
create a loophole by enabling an employer to avoid the duty because
they
would know that if they were caught, they could simply claim ignorance.
Ignorance should be no defence in law. Ignorance would then be
sufficient justification for not fulfilling the duty at all. Not even
checking the young person’s evidence that they had made
appropriate arrangements for education or training would clearly be
unacceptable. I hope that, in the light of that, the hon. Member for
Yeovil will withdraw the
amendment.
Mr.
Laws:
I am grateful to the Minister for
clarifying the Government’s intent. He reassured me that if the
documents supplied by a young person were falsified in some way, the
young person, not the employer, would be held to account. I did not
manage to leap in in time to ask the Minister to clarify the other
circumstance to which I referred. A young person might have
legitimately got into education and training at the beginning of their
employment with an employer and then dropped out of the training course
three days after, or the training course might have collapsed. That
individual might then have decided that there was nothing else on offer
that they wanted to take up. Perhaps two or three months later, someone
might discover that that young person was not in education or training.
Under those circumstances, would there be an employer
responsibility?
Jim
Knight:
There is no employer responsibility in those
circumstances.
Mr.
Laws:
I express my gratitude to the Minister for that
reassurance. I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Jim
Knight:
I beg to move amendment No. 54, in
clause 22, page 12, line 1, after
‘education’, insert
‘authority’.
We
omitted the word “authority” due to typographical
error.
Mr.
Hayes:
It would be quite wrong to skate over this with the
speed that the Minister wants. As you know, Mr. Bercow, the
amendment was tabled in my
name—
Jim
Knight:
May I record my gratitude to the
hon. Gentleman and his colleagues for tabling the amendment because it
reminded us of the housekeeping that we needed to
do?
Mr.
Hayes:
I am delighted that the Minster has acknowledged
the first of many amendments that he will accept during the passage of
the Bill. He has been slow to accept the first of them, but given the
spirit in which he has accepted this suggestion, we hope that he will
accept many more of our honourable attempts to improve the
Bill.
Amendment
agreed
to.
Mr.
Hayes:
I beg to move amendment No. 55, in
clause 22, page 12, line 4, leave
out from ‘area’ to end of line
6.
Clause
22 provides for a local education authority to serve a penalty
notice——this is precisely what we discussed a few moments
ago in relation to employers——and sets
up the circumstances under which the notice can be published. The
problem with the clause is that it is clumsy. There is no clear line of
accountability in respect of a person who lives in one local education
authority area and works in a different one. The amendment is probing.
It aims to allow the delegation of the task from one authority to
another. I hope that the Minister will deal with it in a way that will
satisfy a reasonable complaint about the
Bill.
Jim
Knight:
The amendment would limit the circumstances in
which a local authority could take action against an employer in its
area to those concerning a failure to check that new employees resident
within the local authority’s area were in appropriate training.
Any failure by the employer to check in respect of new employees
resident outside the local authority’s area would not be
covered.
If a local
authority discovered that an employer had not been making checks, it
would not be able to issue a penalty notice unless the employees were
resident in the same area as the employer, but it could contact the
employees’ local authority and ask it to take action. If there
were a large number of employees to whom the failure to check applied,
that could be a very bureaucratic and time-consuming task for both the
local authority, which might need to contact a number of other
authorities, and the employer, who would then have to respond to
penalty notices issued by more than one
authority.
The
amendment would unnecessarily complicate the system, which is designed
to ensure that employers play their part in enabling and encouraging
young people to participate in education or training. On that basis, I
hope that the very reasonable hon. Member for South Holland and The
Deepings will withdraw his reasonable
amendment.
Mr.
Hayes:
I am a reasonable man. The
intention behind the amendment is not to limit the power of the local
authority, but to extend it in the sense that it would be able to work
with other local authorities to do the job that the Minister describes.
However, I accept that that might involve additional administrative
cost and burden. On that basis, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
22, as amended, ordered to stand part of the Bill.
Clause 23 ordered to stand
part of the Bill.
Clause
24
Duty
to enable participation initial
arrangements
Mr.
Laws:
I beg to move amendment No. 180, in
clause 24, page 12, line 32, at
end insert
‘during that
employee’s normal working
hours’.
I shall
not detain the Committee by reading out the explanatory notes on
clauses 24 and 25 because they are rather long, but I refer the
Committee to them. We are about to deal with a number of amendments
that deal with the degree of flexibility that employees will
have to take up their education and training obligations at times that
suit both them and their employers. In some of the evidence that we
took earlier, as well as in the Bill, there is an understandable desire
for flexibility to ensure that employers are not discouraged from
taking on young people. That is particularly the case in clause 25,
which seeks to ensure that the education and training option is taken
up flexibly. We would like to have some
reassurance about the burdens that will be placed on young people as a
consequence of the responsibilities in the Bill, and the understandable
desire that there will be among employers not to lose young people at a
critical time. The amendment would ensure not only that the employer
must permit the employee to stay in training or education, but that
that should be during normal working hours. In other words, the
employer would not be able to foist unreasonable responsibilities on
employees and to require them to take up their training and education
options outside the time that they are working, particularly if they
are working full
time.
7pm
Although
we understand Ministers’ desire to have young people undertaking
a combination of employment and education or training at the same time,
we would be concerned if the effect of the Bill were that some young
people would have to be doing full-time jobs and all their education
and training outside that. Perhaps that is not the Government’s
intention, but that is what we are hoping to explore with the
amendment and I would be grateful for the Minister’s
reassurances or recommendations on that
point.
Mr.
Hayes:
I shall keep my remarks extremely brief. In adding
to the conversation about this useful amendment, I invite the Minister
to enlighten the Committee as to what study the Government have made of
the likely effects on employment of the young people that the hon.
Gentleman spoke about. It is inconceivable that the Government have not
modelled this; we have had this debate a number of times and it is
again coming to a head around this series of clauses. It would be
useful if the Committee could have some understanding of what modelling
the Government have done, which might well refute the claims made by
Professor Wolf and others, but at the very least would inform our
discussion.
Jim
Knight:
Naturally, we have carried out a degree of
research and the impact assessment reflects that. For example, of those
young people between the ages of 16 and 19 who are working, 66 per
cent. work part time, 34 per cent. full time. Of the latter, 1,680 are
in jobs without training, working in small and medium-sized enterprises
and paid less than the national minimum wage for people above the age
of 18. Those are the ones whom we think would be particularly affected
by the legislation, but I do not want to rehearse all the arguments
that I made on 4
February.
My view is
that it should be for the employer, following a discussion with the
young person, to decide how the employment contract will enable the
young person to participate, rather than for it to be set out in law as
the amendment would do. In some cases, a young person might participate
in learning during their
normal working time by way of their employer permitting them to take
time off, but in many cases, the young person’s course times
might simply fall outside their working time, their contract being
drawn up so that normal working time does not clash with course times.
Of course, it is not our intention to force young people to undertake
their learning in the evenings and weekends, but sometimes they might
prefer it. For instance, a young person working in retail could be
working evenings and weekends, and therefore be in learning on
weekdays, or they could be participating through evening or Saturday or
even Sunday classes if they are
available. It is
important to ensure that young people are not subjected to onerous,
unnecessary or antisocial working or training hours. It is perhaps
worth noting that the Working Time Regulations 1998 provide protection
for young workers regarding their working time, both in terms of the
number of hours and when those hours can be undertaken. Nothing in the
Bill changes that protection, but the flexibility in the Bill is
important and it would be taken away by the amendment. That could
damage the youth labour market and be burdensome on employers. In light
of that, I hope that the hon. Member for Yeovil will withdraw his
amendment.
Mr.
Laws:
I am not sure that the Minister is being entirely
fair to me and the amendment, because my reading of the provision at
subsection (2) is that it requires the employer to permit the employee
to participate. It
says,
“permit the
employee to participate in training or
education”
at a
particular time. Nothing in the amendment would prevent an employee who
wished to undertake their course in the evening or outside regular
working hours from doing so. Is there not a danger that employees who
do not wish to do their course in evenings, after a full-time job
throughout the week, might end up being obliged to do so? Will the
Minister provide any reassurance that that would not be the case? Will
he acknowledge that the amendment in my name and that of my hon. Friend
the Member for Bristol, West would not prevent young people from
undertaking education and training courses in the evening, if they wish
to do
so?
Jim
Knight:
The flexibility in the
legislation is there so that employees can do their full-time work and
then fulfil their responsibility to undertake 280 hours of education or
training a year. The Committee has discussed that flexibility at
length. The employer and employee would discuss it on the commencement
of employment as governed by clauses 21 to 23. If arrangements change,
further discussions would take
place.
Mr.
Laws:
Perhaps I have misunderstood the
Government’s intention. Under the Bill, as it stands, could an
employer say to a young person, “Fine, do your education or
training, but regardless of that nonsense we want you here during the
day, so you will have to do it at 7 or 8 o’clock in the
evening—take it or leave
it!”?
Jim
Knight:
I am looking for the relevant provision in the
Bill. Naturally, the employer must behave reasonably. Clause 24(2)
states:
“The
employer must permit the employee to participate in training or
education in accordance with those appropriate
arrangements.”
If the employer is
unduly unreasonable in rejecting arrangements as inappropriate, or
requiring the young person to do something that they think is
unreasonable, they have the option not to take up the job. That might
be a bit extreme, but the important thing is that both parties are
reasonable. We will discuss later clauses on changing arrangements, but
it is important to note now the provisions in clause 25(3) for matters
that would be discussed, which include
the
“needs of the person
in order to fulfil the duty”,
which is significant. They would also
include
the
“circumstances of the
employer’s
business”,
which ought to
be respected, and
the
“effect of the
person’s absence from work on the running of that
business.”
Such
considerations would enter the
discussion.
Mr.
Laws:
I shall not try the Committee’s patience any
further, because we are about to turn to another amendment raising
similar concerns. I shall not press the Committee to divide on my
amendment, therefore, but I hope that at some stage——if
not later today, in the course of the next few weeks——we
might receive reassurances from Ministers greater than the backstop
reassurance that the Minister sought to give when he said that a young
person could simply choose to lose their employment opportunity, which
does not seem particularly satisfactory. I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Clause
24 ordered to stand part of the
Bill.
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