Employment Bill

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Mr. Kevin Hughes (Doncaster, North): I have a great deal of sympathy with the line that the hon. Gentleman is pursuing, but the argument is somewhat academic. I have every confidence that such consultation will take place, particularly in small businesses where people work together closely. We are not living in the 1960s, 1970s or early 1980s. Most employers treat their employees as their best asset. I am sure that, in the real world, people will accept that the right exists to two weeks' paid leave, and employers and employees will work out between them when they will be taken. The argument is worth while, but it is somewhat academic.

Mr. Hammond: I accept that what the hon. Gentleman says will prove right in the large majority of cases. In most small businesses, it is inconceivable that no discussion would take place. In this case, however, given the language of the Bill, we are talking about whether the employee, not the employer, is a reasonable, decent person. We are considering cases where an employee shoves a piece of paper at his employer that states, ''I'm off next Tuesday.'' Not all employees behave as reasonably as the great majority. Having watched some of the employees of South West Trains on the television in the past 48 hours, I find it hard to imagine them turning up on Tuesday morning and sitting down for a cosy and constructive chat with their superior about when they should take paternity leave. Unfortunately, in certain situations an invitation to act formally without consultation will be taken up.

I do not disagree with what the hon. Gentleman says, but if he is right it would be nice if the language used made a gesture in that direction. Nor do I

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disagree with the view of the Minister and the hon. Member for North Norfolk that it would be quite difficult to frame my suggestion in workable language, and to facilitate consultation while enabling resolution of a failure to agree. Perhaps we should think a little more about the matter, and return with constructive suggestions as to how we might proceed.

One important point that has emerged from this debate—we will discuss it further in relation to amendment No. 105—is that there is no flexibility, no matter how co-operative employers and employees wish to be, over the starting date for statutory paternity leave and, consequently, for statutory paternity pay. If an employee begs his employer on his knees to allow him to start his statutory period a week before the birth because his wife is in hospital with complications, the employer cannot agree to that. As the Minister said, he could agree to give the employee an additional week of leave, but he would still retain the absolute statutory right to the two weeks starting from the date of the birth. That is wrong.

We will return to this when we reach amendment No. 105 and, perhaps, on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 103, in page 2, line 14, at end insert—

    '(c) what evidence shall be required of satisfaction of the conditions under subsection (1)'.

The amendment seeks to add to new section 80A(2) a requirement that the regulations will provide for what evidence is required to satisfy the conditions in subsection (1). It is reasonable that the employer should have that requirement set out. The Minister will probably tell us that simple self-certification is all the evidence that is required. However, that would be a somewhat evasive response. Of course, one can choose to allow individuals simply to state that they satisfy conditions, even if they manifestly do not. The phrase commonly used in legal documents is, ''except in the case of manifest error''. When a chap turns up to make a self-certification statement and it is perfectly apparent that it is not true, what is to be done? Will any further evidence be demanded in support?

The Minister told us that he does not expect to make regulations under new subsection 5(a), which defines what is or is not

    ''to be taken as done for the purpose of caring for a child or supporting the child's mother''.

None the less, new subsection (1) stipulates that to satisfy the conditions, the employee must not only satisfy certain requirements about duration of employment, relationship with the child and relationship with the mother, but must be absent on leave

    ''for the purpose of caring for the child or supporting the mother.''

As a general principle, it is not good practice to make legislation that is completely unenforceable and cannot be policed. Clearly, the Bill intends that people should take time off for the purpose of caring for the child or supporting the mother, but the Minister would have to admit that in practice it will be impossible to

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distinguish between the chap who is caring for the child and supporting the mother and the cad who is in the snooker hall for the whole two weeks.

Can the Minister explain the point of this provision? While he is at it, can he be a little more explicit about how he envisages that the condition that absence from work on leave is for the purpose of caring for the child or supporting the mother will be fulfilled?

Alan Johnson: As I understand it, the amendment suggests that an employee should be required to produce evidence of his entitlement to paternity leave, although the hon. Gentleman took it a bit wider than that. I assure him that we have talked about this long and hard. It is unlikely that a huge problem will be caused by people seeking to get paternity leave just for the joy of having a couple of weeks off on £100 a week. That is, nevertheless, something that we have considered carefully. When we examined the details of paternity leave, we tried to stick as closely as we could to the maternity leave provisions.

With regard to maternity leave, it is certain that there is proof in advance of the fifteenth week before the woman expects to have her child. There is also form MATB 1, which is issued to a mother by her midwife. It can act as proof of her condition, and it can be shown to an employer.

Paternity leave is less clear cut, and it is especially unclear before the birth of a child. We want fathers to give proper advance notice to their employer that they will be taking paternity leave, and, as I have said, that period will be 15 weeks, which will allow employers to plan ahead with certainty.

With the best will in the world, it is impossible for the employee to prove his relationship with the expected child. He can assert that he believes that he is its father, but he cannot produce firm evidence. That is an easily comprehensible issue on which the hon. Gentleman said, ''How can the father do that? It is totally impossible.'' When we consulted with employers, the one message we received over and over was that they wanted nothing to do with investigating and policing the private lives of their employees; hence the self-certification proposal. Given that there is no firm evidence of paternity short of a DNA test when the child is born, the last thing that employers want to do is to wade through evidence and take a view on whether a particular employee is or is not likely to be the father of a child.

Mr. George Osborne: When the Minister's Department drafted the legislation, did it consider the possibility of getting the mother to countersign the self-certificate so that there was proof that she knew that she had a relationship with the man who was claiming paternity leave?

Alan Johnson: I must say to the hon. Gentleman that that idea is not robust. As in all these cases, that idea was mooted during our long discussions. Employers said that they wanted nothing to do with policing their employees' personal lives.

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Mr. Hammond: The Minister has slipped into the use of language for which he would have shot me down. He is discussing paternity as a biological issue. My understanding of his intention is that he wants to focus not on biological paternity, but on the role of a person in relation to a child, and the woman who is giving birth to that child. We are not discussing biological fatherhood; we are discussing how to establish that there is a relationship and a clear intention to play a role in caring for the child or supporting the mother. Will he clarify whether that is the focus of his intentions?

Alan Johnson: The vast majority of people who seek to take paternity leave by informing their employer will be biological fathers, and that is where the major question arises. People who are not the biological father but apply for paternity leave because they have caring parental responsibilities and their partner is due to give birth are another aspect, but they are not the main focus. It does not matter what case we are considering because employers were vociferous in saying that they wanted nothing to do with investigating whether information was correct.

Mr. Hammond: On that basis, will the Minister clarify whether the relationship with the newborn child that he expects to specify as satisfying subsection (1)(b) will be that of biological father to the child? Will the regulations refer to biology?

6 pm

Alan Johnson: On subsection (1)(b), the relationship will be with the biological father. On subsection (1)(c), it will be with the natural father or partner at the time of birth.

What do we intend to do? This is a standard self-certificate asserting that an individual applying for paternity leave meets the eligibility criteria and is therefore entitled not just to paternity leave, but to paternity pay. The certificate would protect employers from having to make invidious decisions. They would rely on the certificate as proof that their employee qualified for the entitlement and that they should be reimbursed by the Inland Revenue for the paternity pay. They will not be expected to check any further than that.

We must be conscious of the possibility of fraud on the part of employees in asserting that they have an entitlement to paternity leave and on the part of employers who might try to claim money from the Inland Revenue for paternity leave that their employees did not take.

The Government and the Inland Revenue believe that the risk of fraud is very low. The vast majority of employers and employees comply fully and happily with their obligations under other payroll-based schemes and we do not expect this scheme to be different. However, we have borne in mind the possibility and we shall later consider clauses covering the precise administration arrangements for the new pay schemes and the penalties that will apply in cases of non-compliance.

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With that explanation, I hope that the hon. Gentleman will withdraw his probing amendment.

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