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The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): Clauses 7 to 9 bring into effect Parts I to III of Schedule 4, concerning maternity and parental leave and time off for domestic incidents, together with the consequential amendments. I shall cover these in more detail when we come to Schedule 4. I commend the provisions to the Committee.
Schedule 4 [Leave for Family and Domestic Reasons]:
Baroness Miller of Hendon moved Amendment No. 246:
The noble Baroness said: This is a minor amendment to avoid a possible over-reaction to what may be a very commonplace situation. The Bill states that an employer shall not permit an employee to work during a compulsory maternity leave period. This simple amendment alters the wording to, "An employer shall not require an employee to work during a compulsory maternity leave period". As the late Professor Joad used to say, it all depends on what you mean by "work".
If an employer telephones a secretary and asks, "Where is the Bloggins file?", technically when she replies, that is working. There is much non-arduous work, especially of a clerical nature, that can be done at home these days, in the employee's own time and at the employee's own convenience. I do not categorise as non-arduous the
I am sure that the Government will argue that that absolute prohibition will prevent pressure being placed on an employee to do some work. However, I do not believe that that is a valid argument. The revised wording is absolutely clear. If an employer asks an employee to help him out with some task or other, the employee is absolutely entitled to refuse. The employer cannot, under the amendment, require her to do so. However, it is absurd that the making of a simple telephone call asking the employee where the keys of the stationery cupboard are means that the employer is committing an offence under these provisions, rendering him liable to a fine of up to £5,000.
Once the right to maternity leave is incorporated into our law and into the relationship between employer and employee, I do not dispute the need to protect employees from exploitation or from being subjected to pressures by an employer to avoid or evade it. However, I think that in the clause as presently drafted the Government are using a shotgun and are taking no regard of what the employee may think is reasonable or proper. I beg to move.
Lord McCarthy: I hope that the Government will resist this amendment. If it were accepted, it might reasonably be called the "It's up to you" amendment. If the law states that an employer shall not permit an employee to do something, it is the responsibility of the employer to ensure that it does not happen, and if it does happen, that is the employer's responsibility. An employer cannot say to an employee, "It's up to you. If you would like to help me and to be co-operative, you will come in on Sunday". That is not what the noble Baroness wants. She wants the Bill to state that an employer "shall not require". In other words, the employer can say, "I don't require you to do this, but it would be very nice if you did". That is the same as saying, "It's up to you". Those who know anything about the balance of power between, for example, employers and their secretaries know exactly what pressures employers put on secretaries when they say, "It's up to you". So I sincerely hope, if this is to mean anything, that the Government will not accept the amendment.
The Earl of Mar and Kellie: My Amendment No. 246A is grouped with these amendments. The amendment sets out to define what is meant by the word "remuneration". It would include childcare vouchers, luncheon vouchers and holiday stamps. This amendment has been suggested to me by the Law Society of Scotland. It is a probing amendment and has the aim of sorting out the ambiguity over which employee benefits constitute
Lord Sainsbury of Turville: These amendments relate to different aspects of maternity provision and so I will take each of them in turn. Amendment No. 246 relates to compulsory maternity leave. I am somewhat surprised by the concern which this provision has generated both here and in the other place. The compulsory maternity leave provision was put in place by the previous administration to give effect to the Pregnant Workers Directive which required member states to introduce a period of compulsory leave for women around the time of childbirth.
In 1994, when the directive was implemented, this requirement was translated into a ban on women working during the two weeks following the birth, coinciding with the period when most women would be on maternity leave. I doubt whether many women are keen to return to work within two weeks of having a baby, but if the onus is on the employer to ensure that the employee does not return to work within this period, the employee cannot be pressurised to return to work immediately after childbirth and cannot be forced to bear any additional strain of having to assert her rights at such a busy and stressful time.
We do not intend to change this safeguard. It is a health and safety provision, applicable in circumstances where there is a real risk to women's health. We believe it is entirely right that women should be afforded the maximum protection during this time.
Amendment No. 246A seeks to ensure that a partial definition of "remuneration" is included in the Bill itself. The right to remuneration is the element of a woman's terms and conditions of employment which will continue during ordinary and additional maternity leave only if her contract provides for it to continue during this period. It is generally regarded as the monetary element of a woman's wages or salary, the element which is normally replaced by statutory maternity pay or maternity allowance.
The definition of "remuneration" is not easy, especially given the wide variety of remunerative benefits available to the workforce in a modern economy. The amendment lists three possibilities: childcare vouchers, luncheon vouchers and holiday stamps. I am sure that others would suggest more along similar lines, and we would be very reluctant to put such a precise definition on it at this stage, if at all. However, we are committed to consulting on this issue and will be in a better position to judge what the definition should be at the end of the consultation period. I hope I have clarified our thinking on these two issues, and in doing so, I hope I have persuaded the noble Baroness and the noble Earl to withdraw their respective amendments.
Baroness Miller of Hendon: I will accept the Minister's suggestion, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 246A not moved.]
Lord Meston moved Amendment No. 247:
The noble Lord said: In paragraph 5.23 of the White Paper, Fairness at Work, the Government recognised that parents who adopt a child have no statutory right to take leave from work. They also recognised that adoption is valuable for society and also that adoptive parents have as much need as others to spend time with their children. In the same paragraph, however, they went on to say that the Government did not intend that adoptive mothers should have the same maternity rights as birth mothers. Other countries in Europe do provide paid leave for adopters and indeed a few firms in this country also do so. Presumably those employers who allow paid adoption leave recognise the importance of retaining staff who want to take time off for adoption purposes and recognise that only very few will wish to take advantage of the benefit offered.
They must also be taken to recognise the wider social value of adoption to the community, not to mention the cost benefits of taking children out of care and into permanent families. Apparently the Government's reason for distinguishing between maternity provision and adoption is simply that maternity provision exists to protect the health and safety of mothers and babies, which does not apply in respect of adoption. While it is true that there are health considerations underpinning maternity rights and benefits, that is a limited and insufficient justification, I suggest, for excluding adopters' equivalent rights. By the use of the word "equivalent", I do not argue for identical rights, but prospective adopters should not be discriminated against. Both natural and adoptive parents have to give that most valuable of all commodities to the children for whom they become responsible; namely, time.
The process of adoption is hazardous and demanding, even though the hazards and demands are not the same as those of maternity and natural parenthood. A successful adoption requires skilled preparation and prospective adopters have to go through rigorous procedures. Even if the adoption is uncontested, there is the requirement for a child to be placed with them for a minimum of 13 weeks. They are scrutinised, assessed and reported upon by specialist social workers and the child's guardian.
At the end of this process and transition period, they have to attend a court hearing. They may then need post- adoption support. Above all, they have to bond with the child and to settle and integrate him or her fully into their own household and family. There may be residual difficulties with the child's natural parents to contend with. In every case the adopters will have to devote time and energy to meeting a child's individual needs and to forming the attachment which is needed to make the placement work. If it does not work, not only are the adopters profoundly disappointed but the child is let down yet again.
In this country there is a serious shortage of families willing and able to adopt, particularly those able to take on the children who are most in need of a stable placement within an adoptive family. They make considerable sacrifices to enter a long-term commitment with sometimes damaged children who have been let down by other adults, who all too often have been moved around within the childcare system. Some adopters do not always take on just a single child but may be prepared to take on siblings in order to give them a chance of being brought up together. The child or children they take on may have been abused and neglected, and will almost always be insecure after disruptive lives that most of us can only try to imagine.
It will help to encourage prospective adopters if those who are employed know that, apart from other sacrifices they may willingly make, they will not have to risk financial stress at an anxious time for the prospective adopters and at a critical time for the child concerned.
Adoption, as distinct from fostering, does not produce an automatic financial allowance. Suitable adopters are a precious and scarce resource. At present the adoption rate is falling and too many children remain in homes until released before they are adults, deprived of the family security which adoption would have provided.
This whole area of the Bill proceeds on the basis that loyalty to an employer need not conflict with loyalty to the family, while recognising that each can make demands on time and energy which have to be balanced and reconciled. Even if the adoption rate picks up, the proposal in this amendment will not affect many employers or employees. Those who would need or wish to take advantage of it will be far fewer than those who will claim the improved maternity rights given by the Bill. Those employees who make these sacrifices and commitments should not have to do so on unpaid leave or at the risk of losing their job. This amendment, or something like it, could do a great deal of good at minimal cost. The Government expressly claim to support families. By accepting the thrust of this amendment they will justify their claim. I beg to move.
Page 62, line 40, leave out ("permit") and insert ("require")
4.45 p.m.
Page 64, line 17, at end insert--
("( ) The Secretary of State shall make regulations entitling an employee to leave when a child is lawfully placed with that employee for adoption for periods and on terms and conditions (including remuneration) equivalent to those to which an employee would be entitled in the event of maternity.")
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