Apprenticeships, Skills, Children and Learning Bill


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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]
AYES
Brooke, Annette
Gibb, Mr. Nick
Hayes, Mr. John
Walker, Mr. Charles
Wiggin, Bill
NOES
Blackman, Liz
Butler, Ms Dawn
Hodgson, Mrs. Sharon
Knight, rh Jim
McCarthy-Fry, Sarah
Seabeck, Alison
Simon, Mr. Siôn
Thornberry, Emily
Question accordingly negatived.
 
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