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The major amendment that the Government have introduced is to get rid of the proposal that the rule should be prescribed in regulations, which would be thought up some time later. I hope that this new method will be adopted in other Bills, rather than the Government's producing what are largely enabling Bills on many important topics.
I congratulate the team of Ministers who have been dealing with the matter and the team of officials in the Box who have found a way of dealing with it at the appropriate time. In this case they have bitten the bullet, and despite the inability of the Minister of State in the other place to define a domestic incident they have now spelt out in straightforward terms exactly the circumstances in which such leave is to be taken.
The Bill as originally drafted was vague and woolly. The noble Lord the Minister was correct when he talked about it not being a matter of time off to have a washing machine repaired. I think that may have been something to which I referred when I said how woolly the Bill was. In fact, it seemed wide and woolly but it looked nothing less than gold-plating the European Union's directive, which used the expression "force majeure".
My own amendment was to specify what should be covered, by using the EU's own wording. Perhaps it is just as well that this will not now be necessary, because in 1904 Mr Justice Walton was asking "What is the meaning of force majeure?" In 1915 Mr Justice Bailhaghe complained that the words were taken from the Napoleonic Code; and in 1922 Mr Justice Sankey said that he absolutely regretted the introduction of foreign words into English statutes without any definition being given. I apologise for my having attempted to do that in my amendment. I am only glad that the Government have done the right thing and told us precisely what is involved. I have, of course, withdrawn my amendment defining the grounds of such leave.
I am also very glad to see that the Government have in their new subsection (2) adopted my intended amendment requiring the employee to do the minimum courtesy of informing his employer of the reason for taking such leave and to predict the date of his return. Therefore, I am able to withdraw my amendment covering that point as well.
Amendment No. 103, to page 73, line 45, inserts the concept of reasonableness to judge an employer's conduct if he refuses such leave. This is also most welcome. The Department of Trade and Industry has often been reluctant in other cases where I have argued for acceptance of "reasonable", as if it was not sure whether it could reasonably understand what "reasonable" meant. It is absolutely great that in this case it has been accepted. This change of heart, and the insertion of just two words that I never thought I would hear the Government utter, enabled me to withdraw an entire amendment covering 15 lines and containing two subsections and four paragraphs.
Yet again I am pleased to note that the Government have now inserted a new and detailed amendment, defining in subsection (3) the dependants whose problems, to use a wholly inadequate word, might give rise to the need for such leave. It may be recalled that I proposed an amendment along those lines at an earlier stage to eliminate what I described as a limitless definition in the Bill. The Government did not accept my amendment, but the noble Lord, Lord Sainsbury of Turville, said that they would consider the matter carefully. He said:
After all this good will, it is perhaps churlish of me to mention my own very minor amendment, Amendment 98A, to the Government's amendment. This inserts "unpaid" to qualify the time off provided for in the opening words of the Government's new clause. I will not take up much time in arguing this point as I dealt with it in connection with the new clause 76 inserted by the Schedule. If we agree that an employee should be entitled to time off because of a serious domestic emergency, there is no reason why his or her employer should be compelled to pay him at the same time.
Of course I accept, and it is right, that most employers will be sympathetic and probably would not dream of docking any pay. But some, particularly small firms, may have no alternative, especially if they have to employ somebody to make up the time and work of their absent employee. In all the discussions in the other place it was made clear that parental leave was to be unpaid. That was in the explanatory notes to the Bill, though I did not find it in the Bill itself. I do not believe that there is any reason why there should be a distinction in the case of emergency leave. On the assumption that that is the intention, this clarification will put the matter beyond argument. I hope that the Government will find it possible to accept this minor modification of their very good amendment, which we otherwise support.
Baroness Pitkeathley: My Lords, the House will not be surprised that I rise to speak very warmly in support of Amendment No. 98 in particular. It gives employees who are carers the right to take a reasonable amount of time off in order to deal with a whole range of difficult caring situations, such as making arrangements for residential care if alternative care arrangements break down.
Carers' national associations, which have been campaigning for many years for the right to time off for working carers, welcome the amendment. It fulfils a pledge made in the national strategy for carers that they would have time off from work to deal with caring situations. This is part of a package of family-friendly employment policies which I welcome most warmly, and I know that all working carers will do so too.
Lord Sainsbury of Turville: My Lords, the provision to which this amendment relates, new Section 57A of the Employment Rights Act 1996, will be incorporated into a part of that Act which includes a number of different provisions for time off for various reasons. The amendment is not necessary; indeed, it could cause some confusion. I shall explain.
In the case of some of those provisions--provision for time off for ante-natal care is an example--the section providing for the right is immediately followed by another section providing for the time off to be paid. In the case of others--for example, the section providing for time off for public duties--there is no following section providing for remuneration. New Section 57A will not be followed by a remuneration provision. The clear result will accordingly be that an employer is under no obligation to pay the employee in respect of the time off provided for.
Were we to make the amendment, it would create confusion about how other provisions for time off were to be interpreted. It would be arguable that, because the word "unpaid" appeared in Section 57A but not Section 50 (which provides for time off for public duties), employees taking time off under Section 50 had to be paid for the time off taken.
Should the noble Baroness, Lady Miller, need any further persuasion on the point, she could consider new Section 57B which will be inserted into the Employment Rights Act 1996 after Section 57A. It provides that an employee may make a complaint to an employment tribunal if his employer has unreasonably refused to permit him to take emergency leave but it does not entitle him to complain that the employer has failed to pay such leave. I hope that that illustration helps to reassure the noble Baroness that the amendment is not necessary.
Baroness Miller of Hendon: My Lords, I thank the Minister for his clear explanation. I would not wish to make the issue more complicated and I am satisfied with the Minister's explanation. I beg leave to withdraw my amendment.
Page 73, line 45, leave out ("failed") and insert ("unreasonably refused")
Page 74, leave out lines 15 to 30
Page 74, line 44, leave out ("for domestic incidents") and insert ("under section 57A of that Act (dependants)")
Page 75, line 6, leave out ("for domestic incidents") and insert ("under section 57A of that Act (dependants)")
Page 75, leave out line 14 and insert ("under section 57A of that Act (dependants),".")
Page 75, line 40, leave out ("for domestic incidents")
Page 76, line 27, leave out ("for domestic incidents")
Page 77, line 19, leave out ("for domestic incidents") and insert ("under section 57A")