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Lord Sainsbury of Turville: A similar amendment was tabled in the Commons where the Minister for Employment Relations and in the Regions said with some confidence that it was not needed, but promised he would double-check. We have double-checked and we still believe the amendment is not needed.
I understand the concern that lies behind the amendment. We all agree that it is right that the entitlement of paternity leave should not be lost in the event of stillbirth where the need for the father to take time off, if only to support the mother, is very clear.
However, the amendment is not necessary. The Employment Rights Act 1996 into which the relevant provisions on paternity leave are inserted states at Section 235(1) that in the Act,
- "'childbirth' means the birth of a living child or birth of a child whether living or dead after twenty-four weeks of pregnancy."
In those circumstances, the situation is clear because of where it fits into the Employment Rights Act 1996. I therefore hope the noble Baroness will withdraw her amendment.
Baroness O'Cathain: As a point of clarification, what happens if the child dies after three weeks? Would that be covered by this provision?
Lord Sainsbury of Turville: It has to be after the 24 weeks of pregnancy.
Baroness O'Cathain: But what if the child went to full term and died after three weeks of being born?
Lord Sainsbury of Turville: Yes, in those circumstances, entitlement would continue.
Baroness Miller of Hendon: I was quite hopeful at the beginning of the Minister's reply when he said the amendment was not needed. That is a different word from "not necessary". I thought he would continue to say that as it does not alter the Bill we might as well leave it out. I never yet had the pleasure of such a problem with the Minister. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4 p.m.
Clause 2 [Statutory paternity pay]:
The Deputy Chairman of Committees: This is a vast grouping, and I might mention them all in one breath. If Amendment No. 4, a government amendment, is agreed, I cannot call Amendment No. 5. If Amendment No. 8, again a government amendment, is agreed to, I cannot call Amendment No. 9. If government Amendment No. 14 is agreed to, I cannot call Amendment No. 15.
Lord Sainsbury of Turville moved Amendment No.4:
- Page 5, line 31, leave out "who is, or has been, an employee"
The noble Lord said: The group of amendments we are considering here reverts in the main to an issue which we discussed at some length in the other place, and which was left unresolved. That issue is the circumstance in which an employer is liable to pay paternity pay to an employee, and whether that liability continues even when the employee has moved on and left that employer's employment at some point before the child is born and any payment comes to be made.
There is no disagreement about the fundamental policy intention; namely, that it would not be right for an employer to be responsible for making payments to a former employee who had left his employment some time ago. The issue under discussion was whether the Bill as currently drafted gave proper effect to that intention and the Government undertook to go away and examine whether amendments were needed to give effect to that policy.
Given our policy intention, several Members expressed concern about the phrases in the Bill that seemed to them ambiguous or even misleading; namely, that the employee should have "ceased to work" for his employer and there might be circumstances where a person not just who is an employee, but who "has been" an employee, could qualify for paternity pay from the employer. I am not surprised that the noble Baroness has returned to the charge by laying amendments to delete or modify these phrases.
Now that we have examined the Bill closely in the light of the concerns raised earlier in the other place, she will see that we agree with her. In this case, we believe that some amendments are necessary to correct the situation. Indeed, as she can see, we go rather beyond her in our view of the amendments that are needed. I hope that, once I have explained matters a little further, she will therefore agree to withdraw her amendments and agree to the Government's, which effectively subsume those she has tabled.
The package of amendments tabled in my name establishes unambiguously that an employee will be entitled to statutory paternity pay from an employer only if he is working for that employer up to the date of birth or placement of the child, and not if he has left his employment at some point beforehand. In making this crystal clear, various consequential amendments are required to maintain internal consistency, and I would like now briefly to go through the amendments in turn.
Amendments to lines 31, 37, 42, 44 and 45 on page 5 and lines 2, 5 and 6 on page 6 make clear that, in the case of paternity pay on the birth of a child, an employee must continue to be employed by his employer between the end of the "relevant week" and the date of birth itself. In this case, the relevant week is the week immediately preceding the 14th week before the expected week of childbirth, in other words the week when he must give his employer notice of his intention to take paternity leave. Amendments to lines 27, 28 and 32 make equivalent provision for paternity leave in the case of adoption, where the relevant week is necessarily expressed differently.
Amendments to line 31 on page 5 and line 13 on page 6, as with those tabled by the noble Baroness, delete references to a person who "has been" an employee qualifying for paternity pay, since, as I have said, at the time his entitlement crystallises he will necessarily still be in employment.
Amendments to line 37 on page 5, lines 19, 23, 33 and 45 on page 6 remove references to an "expected" child, since entitlement for paternity pay will crystallise on the birth or placement of a child, not beforehand. This does not, of course, affect the fact that notice of intention to take both leave and pay must be given in advance.
Amendment to line 33 on page 8 ensures that the requirement that pay (like leave) should be available only where the employee is taking time off work for the purpose of supporting the mother or caring for the child, which would otherwise have been lost from the drafting, is reinstated elsewhere.
Amendments to line 36 on page 6, line 15 on page 7 and line 2 on page 8 make consequential amendments to cross-references.
Amendments clarify that payment is by reference to a clearly defined "statutory pay week", where the current draft of the Bill might otherwise be seen as slightly confusing in that it refers in one place to a pay "week" and in another to a pay "period".
Finally, the amendment to lines 34 to 36 on page 8, which subsumes the noble Baroness's amendment to line 34 on page 8, tidies up subsection (4) of the new Section 171ZE. The policy intention is to regulate in a way which mirrors the existing statutory maternity pay legislation in this area. The relevant statutory adoption pay provisions (subsections (3) to (5) of new Section 171ZN) achieve this and we propose amending the statutory paternity pay provisions in Section 171ZE(4) to make them similarly consistent.
The noble Baroness may have noted that the government amendments do not take account of her proposed amendment to line 15 on page 15, to the adoption provisions of the Bill in Clause 4. This is because I do not think the amendment is right. The policy intention in respect of adoption pay is different from that in respect of paternity pay, but is consistent with that in respect of maternity pay.
We believe that once an employee's entitlement to adoption pay has crystallised at the point of matching with a child, that entitlement should not be lost, even if he or she leaves employment—for example, resigning to become a full-time parent. In these circumstances, a mother does not lose her maternity pay and I do not think that an adopter should lose their adoption pay. The words "ceased to work", which the amendment seeks to remove, perform the double function of covering both this sort of situation and the perhaps more usual circumstance where the employee merely takes leave from work with the intention of returning. The words are therefore appropriate as they are in the equivalent provisions for maternity pay. On that basis, the amendment is subsumed in the general position.
Lord Wedderburn of Charlton: Before my noble friend sits down, perhaps he could help me on one matter. We are dealing with a very large number of proposed amendments, and especially government amendments, which are likely to be written into the Bill. I refer to Amendments Nos. 4 to 26, 28 to 32,
and 36. Those who are interested in the matter—and many people are interested in the progress of this Bill, such as employers and representatives of workers too—will be interested especially in what my noble friend said about adoption pay. That struck me as being most important. Those who have not ventured into the Himalayas and climbed to hear the proceedings of this Grand Committee, and who do not have this document which sets out all the amendments, will be quite mystified. Would he arrange to have all these amendments printed in Hansard—to have all of the amendments printed in Hansard? Then those who are trying to follow his speech on this and subsequent matters will be able to read the public instrument of the proceedings of the Committee and be able to put the Bill together.
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