Third Report: The Draft Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000 (HC 297)
Published: 23 March 2000
Government Reply: Fourth Special Report, Session
1999-2000 (HC 522)
Published: 24 May 2000
Further Government Action
1. We are not persuaded that the Government's reasons for delaying the publication of the consultation document were sound. It is not clear, for example, why a three-month consultation period beginning before Christmas should present a difficulty for potential respondents when a two-month period beginning in January does not. Although we recognise the value of private and informal consultation while draft statutory instruments are being prepared, we do not believe that it should be public consultation exercise.
The Government believes in full and open consultation. On this occasion, the consultation was shorter than we would have liked, but it was important to get the proposals right before going out. Consultation with the Working Group complemented the public consultation giving the benefits of a wider input into the proposals.
The Cabinet Office has issued a Code of Practice that requires departments and agencies to adopt a standard period of twelve weeks for written consultations: the final Code will be published in the Autumn. There may be exceptional circumstances that require a consultation period of less than twelve weeks, notably statutory consultation timetables or unavoidable EU requirements. In all cases, where the period is less than twelve weeks, the document should state Ministers' reasons for the restriction, and what special measures, for example advance notice of at least the broad issues covered, have been taken to ensure that consultation is nevertheless as effective as possible.
2. The substantive errors contained in the regulatory impact assessment, together with the unfortunate phraseology used in the notes, suggest that insufficient care was taken with the production of the consultation paper. They also cast further doubt on the rigour of the Government's private consultation with interested parties during the drafting of the document.
The changes in the regulatory impact assessment were unconnected with the consultation process, they were the result of a re-analysis of the data, part of the normal process of refining figures. On the notes, improvements can always be made in wording, the phraseology on training has been improved as a result of the Committee's comments. The consultation provided the opportunity to strengthen the proposals in several respects.
The Cabinet Office Regulatory Impact Unit have recently issued an updated guide "Good Policy Making: a Guide to Regulatory Impact Assessment", which sets out best practice in the method of assessing regulatory impact, and the presentation of information in a clear and appropriate form.
3. We do not see any merit in introducing Regulations with a narrow application at this stage, only to widen their coverage later in the year. We believe that the arguments in favour of a broader definition of "worker" are persuasive, not least of all because the draft Regulations, as currently drafted, do not appear to meet the reflect the intentions behind the Directive and could be subject to a legal challenge. We welcome the Minister's assurances that the Government will re-examine the coverage of employment rights legislation but, in the meantime, we recommend that the coverage of the Regulations should be broader.
The Government has taken into account the strong views expressed in response to the public consultation paper, and has, in this instance, extended the coverage of the regulations to the broader definition of 'worker'.
4. We are concerned that the definition of a "comparable full-time employee" contained in the draft Regulations is unnecessarily restrictive, and we urge the Government further to consider the use of a hypothetical comparator, as we recommended in our earlier Report.
The Government takes note of the Committee's recommendation. The regulations have been extended to allow part-timers to compare themselves with their previous full-time contract after a switch in their working hours, or on returning part-time after a period of absence such as maternity leave. However, the Government believes the concept of a hypothetical comparator is inappropriate in the context of this Directive. The regulations produced are straightforward to enforce and based on a common sense pro rata treatment of part-timers in comparison with real-life full-timers.
5. We are dissatisfied with the Government's decision not to produce a Code of Practice on part-time work. We recommend that the Government should re-consider its decision to replace the Code of Practice with guidance which will not have the same force in law. We would also welcome from the Government a new response to those recommendations in our Second Report of Session 1998-99 which it originally told us would be covered by a Code of Practice. In particular we would welcome from the Government clarification of how it intends to implement Clause 5 of the Framework Agreement (Opportunities for part-time work), including Clause 5.2 which states that a worker's refusal to transfer from between part-time and full-time work should not in itself constitute a valid reason for termination of employment and Clause 5.3 which encourages employers, as far as possible, to give consideration to requests from workers to transfer between full- and part-time work.
The Government wishes to promote the advantages of part-time work in the most effective way. We believe this is best achieved by issuing, in conjunction with the social partners, a plain English guide to best practice for the benefit of employers and part-timers. The whole of Clause 5 (including 5.2 and 5.3) will be implemented through a Programme of Information, including guidance, which will be available on the DTI's Part-time Work website.
Part-time Work: The Law and Best Practice has been drawn up in conjunction with a variety of organisations, such as the CBI, TUC, EOC and FSB, to provide information in ways which meet the needs of employers and employees. This has been available from the Part-time Work website (and in hard copy from the DTI) since July 1st. Further targeted guidance is being developed, for example to meet the specific needs of small firms.