Employment Bill

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Norman Lamb: Does that mean that regulations will ensure that the person will receive paternity pay in respect of the job that he does not do for the fortnight, while continuing to receive ordinary, contractual pay for the job that he continues to do?

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Alan Johnson: I would not like to answer yes or no. That is the general principle, but obviously it will depend on the detail, about which we will consult and which will be subject to the affirmative procedure. With that, I hope that the Committee will accept the clause.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3

Adoption Leave

12.45 pm

Mr. Hammond: I beg to move amendment No. 141, in page 12, line 13, leave out 'satisfies prescribed conditions' and insert

    'is a person with whom a child is or is expected to be placed, for adoption under the law of any part of the United Kingdom and who satisfies such conditions as may be prescribed, in regulations'.

The Chairman: With this it will be convenient to discuss amendment No. 142, in page 13, line 2, leave out 'satisfies prescribed conditions' and insert

    'is a person with whom a child is or is expected to be placed, for adoption under the law of any part of the United Kingdom and who satisfies such conditions as may be prescribed, in regulations'.

Mr. Hammond: We can, I hope, now pick up speed because many issues that recur in this clause have already been dealt with. Amendment No. 141 seeks to include in new section 75A a definition of who is to be entitled to ordinary adoption leave. Amendment No. 142 does the same for additional adoption leave under new section 75B.

I acknowledge that the amendments were drafted in light of my position on a previous debate that referred to the distinction between domestic and overseas adoptions. The wording of amendment No. 141 would exclude overseas adoption. I accept that the Minister has already rejected the suggestion that such adoptions should be excluded and I do not necessarily disagree with him on that. I therefore accept that the form of words would not be appropriate to a regime that included provision for overseas adoptions as well as domestic placements.

However, I ask the Minister to address the general question of why a straightforward definition of a person entitled to adoption leave cannot be included in the Bill. The Bill states:

    ''An employee who satisfies prescribed conditions may be absent from work at any time during an ordinary adoption leave period.''

That could be an employee who is a member of the Labour party or a specified trade union. Although I am being facetious, it seems to be an extraordinarily wide power to simply define an employee ''who satisfies prescribed conditions'' when we all know precisely what those conditions are. The conditions are that the person is, in the terminology of the Bill, an adopter, with whom a child has been placed or is expected to placed. In the case of an adopting couple, it is the person who has elected to take adoption leave, or, in the negative, not the person who has elected to

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take paternity leave. Why cannot that definition be included in the Bill?

Alan Johnson: We thought that we were to have a re-run of the argument about excluding parents who adopt from overseas. The hon. Gentleman has rather thrown me because we had prepared for that argument. I shall dwell on that a little and perhaps inspiration will hit me. If I understand him correctly, he accepts that faulty wording has raised the issue of overseas adoptions, but he wants to know why conditions cannot be prescribed in the Bill, instead of using the wording:

    ''An employee who satisfies prescribed conditions''.

We need to retain flexibility on those conditions, not least because the Adoption and Children Bill is now passing through the House and it may lead to changes that need to be introduced into this legislation. A strict definition might therefore not be appropriate at this stage; we just need a licence that states ''satisfies prescribed conditions''.

Mr. Hammond: That line of argument will not get the Minister very far because new section 80B supplies a more precise definition that relates to paternity leave in the case of adoption. It states that regulations will specify conditions

    ''as to relationship with a child placed, or expected to be placed, for adoption . . . and . . . as to relationship with a person with whom the child is, or is expected to be, so placed for adoption''.

In that part of the Bill, it has been possible to be much more specific and it was not considered to be a problem that the forthcoming Adoption and Children Bill would necessitate a change of wording.

Alan Johnson: The strict terms of the amendment would exclude parents who adopt children from overseas and I ask the Committee to reject it. We have been through the arguments.

On the precise point of why we used that formulation in the drafting—the hon. Gentleman made a fair point about the drafting elsewhere—we have used standard drafting practice for employment law, which does not go into detail in primary legislation. For example, on parental leave eligibility is left to regulations and on social security law—

Mr. Hammond: It is the same Act. My example was drawn from new section 80B to the Employment Rights Act 1996, which is precisely the same legislation to which clause 3 inserts new sections.

Alan Johnson: I hold to my argument that this is standard drafting practice. That may not be a satisfactory answer, but it is not a satisfactory amendment. It should be rejected for the reason that I gave: it prevents adoption from overseas. I shall write to the hon. Gentleman on the particular point on which I tried to be helpful but was unable to think quickly enough on my feet to explain why the clause was drafted in a certain way.

Mr. Hammond: I say, ''If they can't think quickly enough on their feet, sack 'em.''

The Minister is fortunate that amendment No. 141 is defective and he has grounds to reject it on that basis alone. To allow him to gather his thoughts and to answer the question about specifying the conditions in

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the Bill, I shall table on Report a properly drafted version of amendment No. 141that includes scope for overseas adoptions. Perhaps we can then have an informed discussion on why the Minister believes that it is not appropriate to be more specific in the Bill.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 143, in page 12, line 14, leave out from 'work' to end of line and insert

    'for a period equivalent to an ordinary adoption leave period, commencing on any date not earlier than 20 days prior to placement and not later than the date of the placement or such period, or periods (being less in aggregate than an ordinary adoption leave period) as he and his employer shall agree in writing.'.

The Chairman: With this it will be convenient take amendment No. 144, in page 13, line 3, leave out from 'work' to end of line and insert

    'for a period equivalent to an ordinary adoption leave period, commencing on any date not earlier than 20 days prior to placement and not later than the date of the placement or such period, or periods (being less in aggregate than an ordinary adoption leave period) as he and his employer shall agree in writing.'.

Mr. Hammond: Amendment No. 143 refers to new section 75A and amendment No. 144 is the corresponding amendment referring to new section 75B. They would provide a definition of the starting date for a period of ordinary adoption leave entitlement which, to some extent, reflects our debate on paternity pay. If there is to be an entitlement, it may as well be useful. Due to the practical issues surrounding an adoption placement and the preparation for it, the leave period probably needs to start a little before the day on which the placement occurs.

The purpose of the amendment is to probe the Minister on when the ordinary adoption leave period should start. It also provides that ordinary adoption leave could be a lesser period or periods as may be agreed, which again introduces the concept of the employer and employee being able to get together. The employee may be happy to take a shorter period of adoption leave than that to which he may be entitled. He may want only a couple of months instead of the full entitlement, but he may want to take it more flexibly. If someone wants to take brief periods of leave within the adoption leave period, it should be by agreement with their employer. For example, an intention to take every other week off throughout the ordinary period of adoption leave should be agreed between employer and employee—a point that relates to the single block argument that was advanced in relation to paternity leave. A provision such as this is sensible where the employer is happy for the employee to take leave in a flexible way, but in other cases dipping in and out of leave can impose a substantial burden.

New subsection 75A(1) states:

    ''An employee . . . may be absent from work at any time during an ordinary adoption leave period.''

For example, the employee could fail to turn up for work on Tuesday morning and return on Wednesday, only to say on Thursday, ''You won't see me again until next Thursday.'' That is not a satisfactory

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arrangement, except in cases—admittedly, they are numerous—where employer and employee agree that such flexibility is okay.

The amendment addresses—I hope—the question of the start date by requiring that leave be taken in a continuous block, except where the parties agree that it may be taken in discrete periods.

Alan Johnson: When, last week, we discussed various amendments relating to paternity leave, the hon. Gentleman rightly made the strong argument, which I accepted, that primary legislation should be less rigid on issues such as the start date for a period of leave, thereby enabling us to vary matters over time through secondary legislation. I am therefore a little surprised to discover that he is trying to include in the Bill the normal parameters for start dates.

 
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