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Lord McCarthy: Perhaps I may clarify what the noble Lord is asking us to do. At this point in the Bill, we are not talking about periods of leave but about
amounts of pay. I do not see why the employer, who is not paying the money—it is statutory paternity pay—should have a veto on when it is paid.
Baroness O'Cathain: Perhaps I may clarify that point. When we talk about two weeks' pay, it is actually two weeks' pay, not three days, then four days, another three days and then another two days or whatever. The early part of the Bill states "a week or seven days". I take it that the option is between 14 days or seven days. Thus, the employee's pay would be for a week of seven days or a period of 14 days. That is not clear in the Bill.
Lord Henley: Before the Minister responds, in reply to the noble Lord, Lord McCarthy, my understanding is that statutory paternity pay can be paid to an employee who either takes two weeks off at a particular point or takes a week off followed by another week some time later. If that extra burden is to be placed on the employer—that is, of an employee taking not only two weeks off but two separate periods of one week—there should be a degree of consultation with the employer. I should like to see even greater consultation with the employer. However, this small amendment asks the Government to think about allowing the employer to consult a little more with the employee. It is possible that I have misunderstood that point. If that is the case, no doubt the Minister will advise me and I shall return to it at a later stage.
As I implied, the amendment was also designed as a probing amendment in order to obtain an assurance from the Government that pay and leave would cover a period of only two weeks, taken either as one two-week block or as two single weeks at separate times but not as a series of days taken off according to whether Arsenal were playing away or whatever.
Lord McCarthy: The amendment states "if agreed", not "after consultation". "After consultation" is one thing; "if agreed" is a veto.
Lord Henley: It might be a veto. If the noble Lord does not like it, perhaps I could bring in some degree of consultation with the employer and then a whole range of arbitration as appropriate. You can lengthen the Bill yet further; I am not sure that the noble Lord, Lord McCarthy, would like that. I believe this is one occasion where the employee is getting something—he is getting a right to two weeks—so why not at least say that the employer can say, "I am terribly sorry, you cannot take it as two one-week blocks but you can have your right of two weeks all at once if you so wish"?
Lord Sainsbury of Turville: We need not debate too much where the provision appears, although the noble Lord, Lord McCarthy, is probably right because we simply do not agree with the amendment. Let me explain why.
This amendment seeks to institutionalise discussion and agreement between the employer and employee over some of the ways in which it may be possible for paternity pay to be taken.
I am not unsympathetic to the thinking behind the amendment. I believe it is absolutely right that there should be discussion in the workplace well before the leave is taken, so that employer and employee have the best possible common understanding of the position. I know that such discussions are already common in many workplaces where paternity benefits are provided as a contractual matter, and I would not want to see any lesser emphasis placed on such discussions in respect of the new statutory rights.
However, it would be immensely difficult to provide that a particular potential flexibility which we have now introduced into the Bill—namely the possibility that regulations will allow an employee to be able to take a period of statutory pay in a form other than a simple two-week block—in other words either a one-week block or two discontinuous periods of one week—should only be available where it is agreed with the employer.
In the first place, it is by no means certain that final regulations will allow for discontinuous pay periods of this sort. The initial draft of the Bill did not allow for it. But the Bill was amended as a result of long discussion in the other place, where many Members felt that it would be wrong to tie our hands irrevocably on the issue by enshrining the "single block" approach in primary legislation.
However, the Government are yet to be convinced that the case has been made to allow for discontinuous pay periods in practice. There are strong arguments, which were powerfully made to us in earlier consultation, for providing that leave and pay should remain available only in a single block. Of course, we will be consulting on the draft regulations, so people will have the chance to make the case to us. And the advantage of the Bill, as it now is, is that we do not rule out being able to make this change relatively simply, in secondary legislation, if experience of the new right once implemented suggests that it would be either helpful or at least painless for all concerned at some point in the future. But as things stand, I would not expect the Government to regulate in this way.
Even if we were to regulate to allow for the possibility of two discontinuous weeks, it would be very difficult also to provide that such periods are only available if agreed with the employer. What would happen if the employer delayed considering the matter, or unreasonably refused his agreement? I am not saying this would be common but we would need to consider the issue. We would need to provide for it in regulations—perhaps with a formal appeal mechanism and so on. We would risk building into what is meant to be a simple and easily-administered right a new layer of complexity and regulation, and I do not believe that it is needed.
Over and over again, employers have told us that they do not want some sort of veto over their employees' ability to take paternity leave and pay; what they want is the greatest possible certainty—advance notice and simple administration. This is what I believe we have provided for, and I fear that the
amendment, while in many ways understandable, would risk departing from that approach. I, therefore, ask the noble Lord to withdraw the amendment.
Lord Wedderburn of Charlton: Before my noble friend disposes of this obviously undesirable amendment to give employers a veto, I understood him to say that consultation on the matter at the place of work would be very sensible and that the Government intend to promote that in one way or another, which presumably will also be reflected in the regulations. Was he placing emphasis particularly on the fact that the relevant paragraph begins, "if regulations permit", because, if he was, this is one of the very large number of occasions when it would be very difficult to read this Bill before all the regulations are printed and know just what it means? Do the Government envisage that regulations might not permit this paragraph to operate? There are cases later where the scope of regulation powers to alter what appears to be the meaning of the Bill is vast.
The Minister should consider, before Report stage, whether all these powers are necessary. It might be worth knowing what the Government have in mind with regard to the phrase "if regulations permit". Do they have in mind the possibility that they may not permit this to operate? I shall ask my noble friend the same sort of question at later stages but my noble friends and I believe it to be worth raising a general point in the particular matter to see what the Government's position is.
Lord Sainsbury of Turville: I was merely making the point that it is clearly sensible for people to consult in this. That is not to say that the suggestion has to be a regulation, merely that it would be desirable and that people would be encouraged to consult in these circumstances. As regards how this would take place, I made our position clear: we are minded at the moment to have one period of two weeks and not to split it. We were, however, pushed as to whether we would put the flexibility in the primary legislation, which seemed a sensible move, and we have done it. Equally, I have made clear our current thinking on how that would operate. As regards powers in the regulations, the Delegated Powers Committee has looked at this and given us a clear bill of health.
Lord Henley: Obviously, my amendment has not received universal support and I will have to think carefully about how I pursue it at later stages. The noble Lord stressed the importance of advance notice and one of the great strengths of maternity leave is that you know fairly clearly when the event is going to happen.
That brings me on to the point that paternity is not always quite so simple and there are occasions when people do not discover about their new paternal rights until long after the event. I therefore suggest that possibly further amendment should be put down as to what would happen to someone who discovered he was the father some years after. Therefore, 56 days would have denied him his entitlement—but I am being flippant!
I am grateful to the noble Lord in that he has given fairly good assurance that the Government do not intend the regulations to do anything other than provide a two-week period. However, he felt that it was right that there should be a degree of flexibility to allow two separate periods of one week to be brought in later if after consultation that was felt to be desirable. I suspect I will not be coming back to this but I shall look carefully at what he said and if I do so, I shall follow the remarks of the noble Lord, Lord McCarthy, and look carefully at where it ought to be introduced in the Bill. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
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