Mr.
Gibb: I listened very carefully to the words of the
Minister. I am sorry that he was offended by the beastly remarks of the
IOD. I am happy to cite its views; as a pluralist, it does not worry me
that I do not necessarily
agree with every word. I thought that it raised some important and
necessary points and the Committee has benefited from the IOD’s
views, given that it represents a large swathe of British
business. I
am reassured by what the Minister said about teachers, that they will
be covered by the provisions in clause 39. That is a welcome assurance,
but he underestimates the concerns of the teaching profession about the
lack of training for SEN—half a morning in a four year course,
though it may well be longer than that—but the NUT has produced
its own report about the difficulties faced by the teaching profession
when it comes to helping children with special educational needs in the
best way
possible. Regarding
doctors, could the Minister confirm that the employer will be the trust
and not the NHS as a whole? That will be a disappointment to the BMA,
but it will be encouraged by his promise that the matter will be raised
with the Department of Health. If he were to participate in
those discussions, if the BMA were to press the matter, I am sure that
it would be happy to hear that.
The Minister
said that the Government were mindful of the need to prevent burdens
and that is a reason why he ought to be trying to find a way of
incorporating these provisions into the legislation. He argues that an
amendment would take away the right to request time off in
circumstances where there are annual appraisals. Well, yes, we are
suggesting taking away the right to request time off to train where
employees have the right to request time off to train—it just
makes absolute sense. I listened very carefully to what he said and I
detected some softening when it came to the wording of the amendment
and that he was more inclined to accept, or was more sympathetic to,
the wording prepared by the IOD, which has been tabled as amendment 11.
If the hon. Member for Bristol, West were to press amendment
11 to a vote, I am sure that I could persuade Conservative members of
the Committee to support his
amendment.
Stephen
Williams: If we were to move for a vote soon I would be
minded to press, with your indulgence, Mrs. Humble, for a
Division to take place specifically on amendment
11.
The
Chairman: I understood that that was an intervention on
Mr. Gibb. Does he have anything left to
say?
Mr.
Gibb: No, I am very happy. On the basis of that assurance
from the hon. Member for Bristol, West, I beg to ask leave to withdraw
amendment 103 and I look forward to support amendment 11 when it comes
to the
Division. Amendment,
by leave,
withdrawn.
Mr.
Gibb: I beg to move amendment 104, in clause 39,
page 19, line 28, at end
insert— ‘(v) the date of the
applicant’s last request for
training.’.
The
Chairman: With this it will be convenient to discuss
amendment 10, in
clause 39, page 19, line 35, at
end insert— ‘(d) provide the
date of the applicant’s last request for
training.’.
Mr.
Gibb: The amendment seeks to put into clause 39 an
additional detail that an employee would have to include on what is to
become known as a “section 63D application”. As currently
drafted, the employee has to put the proposed subject matter of study
for training on his application: where and when it would take place,
which would provide or supervise it, and what qualification it would
lead to. The amendment adds a fifth requirement, to provide the date
when the employee last made a request for training. That is because
clause 39 gives the statutory right, as the Minister has just said, to
ask for time off to train or study only once in every 12 months, as set
out in new section 63F of the Employment Rights Act 1996. The
IOD—I am sorry to cite it again—argued that such an
amendment would make the administration less onerous for businesses,
and would also stop the frequency of declined requests on the grounds
that they fell within 12 months of the last request made by an
employee. It agreed that this would be a very simple addition to a
section 36D application and an easy piece of information for an
employee to include in his application, but it would be hugely
beneficial in terms of time saved for employee
years. Amendment 10,
in the name of the hon. Member for Bristol, West, is a similar
amendment, which we also support. It is important, when
introducing and imposing such duties on the business sector, that we,
as legislators, do everything that we can to minimise the
administrative burden. All Governments claim that they want to do that;
the Minister himself said that we want to prevent such measures from
becoming a burden. Well, here is a classic opportunity for the
Government to help, by simply accepting one or the other of the
amendments.
Annette
Brooke: In line with the position of the hon. Gentleman
speaking for the official Opposition, we do not have any preference for
either of the amendments: they say exactly the same thing, though in
slightly different places in the Bill. They both try to reduce
administrative burden, which is important to all of us. It should be
done wherever possible, without hampering the provision of
training.
Mr.
Simon: I am getting a little confused regarding the
amendments. On the previous amendments, my position was that we did not
want to put them on the face of the Bill, but we took the point, which
we thought was fair, and we were looking into doing it by regulation. I
thought that everybody would be delighted, but apparently, the
amendments will still be pressed to a
vote. Regarding
amendments 104 and 10, we do not think that they are essential, but we
agree that it will be a useful right for employers to have, and we
firmly intend to achieve the aim by regulation. While it is not a
detail that needs to be on the face of the Bill—it is too fine a
level of detail for that—we intend to achieve it by regulation,
as how it is done regarding flexible working arrangements. On that
basis, I eagerly anticipate that the hon. Member for Bognor Regis and
Littlehampton will withdraw his amendment, because we are, on
this occasion, certainly—rather than
possibly—going to do exactly what he and other hon.
Members want, but by regulation.
Mr.
Gibb: The word “certainly” specified by the
Minister has convinced me that we have achieved what we set out to do.
I look forward to that regulation, and on the basis of the
Minister’s assurance, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Annette
Brooke: I beg to move amendment 246, in
clause 39, page 20, line 10, leave
out ‘thinks’ and insert ‘has reasonable grounds to
think’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 247, in clause 39,
page 20, line 12, leave out
‘thinks’ and insert ‘has reasonable grounds to
think’. Amendment
248, in
clause 39, page 20, line 20, leave
out paragraph (b) and
insert— ‘(b) ‘the
burden of additional costs is unreasonable in proportion to the value
to be derived from the proposed study or
training;’. Amendment
249, in
clause 39, page 20, line 26, leave
out ‘insufficiency of work’ and insert ‘inability
to provide sufficient
work’.
Annette
Brooke: I will, of necessity, be rather brief, as you,
Mrs. Humble, will appreciate that a handover is taking
place, which was not exactly planned, because of the timing of the
debate. I will make my points clearly and concisely.
All four
amendments in the group aim to make the tests clearer, and provide them
in such a way that a clear judgment can be made, where a challenge can
either be answered or accepted. Amendment 246 simply adds
“has reasonable
grounds to
think”. to
the clause, and that seems much clearer than the employer just
thinking, because employers can have all sorts of thoughts, which would
be difficult to challenge or rebut in any way. Amendment 247 makes that
same point. Amendment 248 is particularly important. If a permissible
ground for refusal is the burden of additional cost, how much is that?
Is it £1, £2, £10, £10,000? We have to have
something to tighten that up and add
“unreasonable in
proportion to the value to be derived from the proposed study or
training.”
I have no doubt that
that needs to be tightened up, even if the Minister finds it impossible
to accept the amendment today. On amendment 249, it is easy to add
weasel words to “insufficiency of work”. It would be much
clearer to make the test “inability to provide sufficient
work”. I hope that the Minister will regard those comments
favourably. 3.30
pm
Mr.
Simon: In order for these provisions to work properly it
needs to be clear that an employer has decided whether a ground
applies. Including the term “reasonable grounds to think”
introduces a level of uncertainty and creates a more complex test. The
grounds on which employers may refuse requests are quite extensive and
it should be possible for employers to reach a considered view as to
whether a ground applies in a particular case, as they already do for
flexible working requests. In practice, when considering declining
requests
employers will have to consider which of the permissible grounds for
refusal applies and why this ground or grounds apply. They will then
need to explain this to their employee when they notify them of the
decision. The requirement for the notification will be set out in
regulations. The
flexible working provisions on which this was based work in exactly the
same way and they work very well. They also contain a provision that
the employer may refuse an application only if he considers that one or
more of the prescribed grounds applies. There is no requirement for the
employer to have “reasonable grounds”. However, if the
employer does not have reasonable grounds to think that a particular
ground of refusal applies, it is assumed that he will not be able to
give the necessary explanation in the decision notice and it is open to
the employer to challenge the decision on the basis that it is based on
incorrect
facts. Amendments
248 and 249 both propose changes to the reasons for refusal in
subsection 7 of new section 63F. I sympathise with the
intention behind amendment 248, but I assure the hon. Lady that it is
not necessary to achieve its aim and it would be too restrictive.
Accepting the amendment would limit the use of the additional cost
reason to an unhelpful extent. It would mean that an employer could
cite this reason only where they were able to show that the additional
costs were greater than any value to be gained from the proposed study
or training. We also think that the provisions as they stand already
cater for this.
If an
employer carries out a cost-benefit analysis and concludes that the
costs outweigh the benefits, this seems likely to mean that overall the
proposed study or training will not lead to an improvement in the
performance of the employer’s business. In which circumstance we
think that an employer could pretty certainly use the ground in section
63F(7)(a), which states that the proposed study or training to which
the application relates would not improve the performance of the
employer’s business. Equally, the employer could conclude that
were they to meet the costs in circumstances where no overall benefit
was derived, it could have a detrimental impact on the performance of
the business. In such a case the ground in subsection (7)(g),
“detrimental impact on performance”, could be cited.
Therefore, we think there is ample coverage already to address to scope
of these amendments.
Amendment 249
would have the effect of redefining one of the permissible grounds for
refusal set out in section 63F(7). Rather than specifying insufficiency
of work, it would refer to inability to provide work during the periods
that the employee proposes to work. While I understand what hon.
Members might mean with this amendment, we do not want there to be any
suggestion that an employer would have to seek to provide alternative
work for the employee at relevant times such as where the employee
suggested a change to their current working arrangements to accommodate
the training. We want the sufficiency of work during the period
proposed to be considered in the light of the employer’s current
business situation.
Of course
there is a need for flexibility and there can—and probably will
be—discussions between an employee and employer about how to
accommodate the training request which might result in some
rearrangement by an employer.
The employer
does not have to rely on that reason for refusal if they do not want
to, but we think that the available reason for refusal is better looked
at from the perspective of insufficiency of work rather than the
employer’s inability to provide it. That will be a simpler
reason for employers to apply.
I hope that
on that basis hon. Members will feel able to withdraw their
amendments.
Annette
Brooke: I thank the Minister for his courteous reply. I am
slightly disappointed that we did not make further progress on
amendment 248, but at this time of the afternoon, when we want to
complete at least this section, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Amendment
proposed: 11, in
clause 39, page 20, line 30, at
end insert— ‘(k) a
documented discussion of training needs resulting in a decision on
whether to extend such provision to the applicant took place within the
previous 12 months.’. —(Annette
Brooke.) Question
put, That the amendment be made.
The
Committee divided: Ayes 5, Noes
8.
Division
No.
8] Question
accordingly negatived.
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