Employment Bill

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Norman Lamb: I made a point of principle about trying to get simpler legislation and the interplay between indirect sex discrimination and the new provisions. Does the Minister agree that it would be better, ultimately, if we had only one framework rather than two together? Will he examine that further?

Alan Johnson: It would be very difficult. I remind the hon. Gentleman that we are consulting on the article 13 stuff on discrimination on the grounds of sexual orientation, age, disability and religion. That may provide an opportunity to address the matter. I was musing about the point while the hon. Gentleman was speaking, and his suggestion would be difficult to achieve.

May I discuss the amendments in the order of the Bill, rather than dealing with the Conservative amendments followed by those of the Liberal Democrats? If I can manage that, it will allow a better narrative.

Amendment (a) would insert the phrase ''in writing'' in proposed section 80F(1). Similar amendments have been tabled throughout new clause 2, and my argument is the same for them all. We intend all of the steps to be in writing. The taskforce recommended that and we will put that in regulations. There was an argument—kindly, nobody mentioned it—about whether the basic three-step and two-step procedure under discipline should be in writing. I undertook to consider and consult on that, and it will be done for Report. Both sides of industry on the taskforce said that things should be in writing for the good reasons that have been mentioned previously.

The hon. Member for Runnymede and Weybridge discussed amendment (l), which relates to a person who works between his home and place of business. As part of the flexible arrangements, a person may ask to work from home or in a different way at work. A person cannot ask to work at another workplace, such as another branch of a bank. That is not covered by the provision. We did that because the types of flexible working that the taskforce recognised covered compressed hours, flexi-time, job sharing, tele-working, term-time working, shift working, staggered hours, annualised hours and home working, which is a way of flexible working that is spreading throughout businesses large and small through best practice. We want to cover those ways of working, and home working is an important part of that.

When he spoke to amendment (m), the hon. Gentleman asked why we needed sub-paragraph (iv). He said that he could not think of a single example of something that might come under that provision. I can: tele-cottaging. That is a terrible term; it sounds

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faintly like an act that a person should not commit. It is a system through which people can work from a place that is kitted out with information technology facilities. We want to cover the probability that new methods of flexible working will arise that are not covered by the subsection, which is purpose of sub-paragraph (iv).

Amendment (n) would require an application to be made in writing, and I hope that my response to amendment (a) covers that.

The taskforce discussed the substance of amendment (bb) in detail, and rejected it unanimously. It would insert a provision to require the specification of a reason why an employee requires a change of terms and conditions in order to care for a child. It was discussed and rejected. Why was it rejected? The matter is similar to paternity leave when employers want no part in having to check whether the employee was the genuine father of a particular child. They did not want to get involved. Under the clause, employees may seek flexible working because their partners had left them and they might not want to explain that to the employer. They may have had a problem with their carer, who may have left under acrimonious circumstances. The employees would not want to go into detail. When such matters were discussed by the taskforce, such a proposal was rejected unanimously, and that is why the amendment should be rejected.

11.15 am

I turn now to amendment (b), which was tabled by the Liberal Democrats, and which would leave out subsection (2)(c) of proposed section 80F. I agree with the hon. Member for Runnymede and Weybridge that it is wrong to remove an essential part of what was agreed by the taskforce. We are sticking to its recommendations. It carried out a superb job and I want to say, in passing, that Sir George Bain did excellent work, as he has done on the Low Pay Commission. He is highly regarded, and I commend him for his work.

It is proper that the employee should consider the circumstances of what such a request would mean and what impact it would have on the business. He should think it through, not simply say, ''I want Fridays off.'' That is an important requirement, which is why the Government oppose amendment (b).

The position is similar with amendment (c). The hon. Member for North Norfolk said that the Federation of Small Businesses was keen to push it. It is wrong, however. The taskforce came up with 14 days before a child's sixth birthday to provide a mechanism that would remind people. Many of us fathers know that, when we are two weeks away from a child's birthday, we usually start thinking about it because of the effect that it will have on our bank balance. The period of 14 weeks before the child's sixth birthday would be totally arbitrary. More seriously, after the start of the fourteenth week, the child carer could leave and the arrangements would fall apart. Someone might want flexible working in the remaining 13 weeks and be denied that by the law, under which they would have such a right up to a

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child's sixth birthday. The taskforce was right to say that there should be a certain period, but a period of 14 weeks would be wrong.

I shall take amendments (z) and (d) together. The hon. Member for Runnymede and Weybridge wants the arrangement to be permanent, but the hon. Member for North Norfolk takes the opposite view. The taskforce have the matter absolutely right. If, as part of the arrangement reached between the employer and the employee, it were decided that the change would be for only a specified time and then the employee would revert to the old arrangements, the amendment would complicate matters. Employees would have to go for a different contract of employment or may have their change of terms and conditions. That would be wrong. It was said that people should automatically revert back, but the taskforce was particularly vehement about that because another worker may have been recruited to cover the Friday that the employee was having off. Such arrangements may suit everyone and the taskforce said that there should be no automatic reversion. I do not agree with either amendment.

As for amendment (o), the hon. Member for Runnymede and Weybridge said that proposed section 80F(8)(a)(i) is not suitable. It is not appropriate for the Bill to refer to a period of 26 weeks. That could be written into regulations, but we want to leave ourselves some flexibility because there may be an opportunity in the future to bring different qualifying periods together, which employers are keen to do. It is not something that we have in mind at present, but there should be some flexibility because different pieces of employment legislation involve different qualifying periods.

I agree with the hon. Member for Runnymede and Weybridge about the wording of amendment (t); I was disappointed with the hon. Member for North Norfolk—I may as well hand him his Dan Dare badge now; I know whose statue should go on the spare plinth in Trafalgar Square, although he slightly spoiled his triumph by the line he took. The language we used is that used by the taskforce: business people, union people and charity people sitting down together. It is true that we tried to transpose it but I do not think that that is a problem.

The hon. Member for Runnymede and Weybridge said that the term ''material'' was well known in law; it is well known in accountancy law but not in employment law. The language we use is correct. The term ''reasonableness'' would create another barrier for the employer because instead of being able to say, ''These are the reasons why I am rejecting the measure'', he would have to have a reasonable case, as determined by a tribunal. A tribunal case would open up the prospect of second-guessing the business reasons—the very thing we are trying hard to avoid.

Several hon. Members made a point about guidance. We will accept recommendation 7 of the taskforce for much guidance. We should work hard to give guidance, particularly to small businesses, on all the relevant matters. Amendment (p) dealt with the term ''material''; I do not accept the argument on that

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and believe that the wording is acceptable. On amendment (q), the term ''staff'' is used because we are talking about recognising the effects on the rest of the work force. The rest of the work force might be made up of people who would be termed employees under employment law and those who would be termed workers under employment law. The amendment would prohibit anyone who is not an employee from being considered; the provision on staffing in relation to casual workers or agency staff and so on would therefore be ignored.

Mr. Hammond: Where is that defined?

Alan Johnson: It is defined as the rest of the staff and we will make that clear in regulations. If ''employees'' were used, a large section of the work force would be left out. I do not accept the arguments on that, just as I do not accept the arguments about amendment (r) on similar capability. There is no reason why the coverage could not be provided by someone on a different grade and on different terms and conditions; to prohibit that would restrict employers and employees. I apologise: I have departed from my intention to take the amendments in order.

Amendment (d) is the same as amendment (z) and there is no support from employers or parents for the proposed change. I apologise; I have already dealt with that—I am trying to rush through all the amendments in a short space of time. I shall give up trying to go through them in order.

Amendment (s) dealt with the issue of incompatibility with planned structural changes. The hon. Member for Runnymede and Weybridge made a point about Fowler's ''Modern English Usage'' but in terms of the grounds for refusing, if the planned structural changes involved the decision of an individual wanting to work in a shop on Monday, for example, rather than Sunday, for example, which meant that the shop would close on Sunday, that would be grounds for rejection. In terms of incompatibility, the amendment would make an unnecessary addition.

The argument on amendment (u) is the same as that for amendment (t). I have dealt with the question of reasonableness. The amendment tidied up the paragraph on the original amendment. The right to be accompanied is an important point. It is different from the provision under the Employment Relations Act 1996 that one can be accompanied by a trade union representative, regardless of whether he or she is recognised. The taskforce said that that would be wrong; it would have to be a recognised trade union representative, because it is important to have someone who understands the background. The process is not an industrial tribunal, a discipline case or a grievance case; it is about how the workplace operates. That is one important reason.

The taskforce also said that the employee could be accompanied by a friend. We will have to consult widely and draw up the regulations carefully. However, the gist of the taskforce's recommendation was that someone who might have a lot of knowledge—not lawyers; it does not expect lots of

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lawyers to come into the workplace—or who might have worked in a similar industry, perhaps a friend who had seen that operate before—

It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June 2001] and the Order of the Committee [6 December 2001, as amended on 22 January 2002], to put forthwith the Question already proposed from the Chair.

Amendment agreed to.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Amendments made: No. 201, in page 70, line 27, at end insert—

    'In section 191(2) (provisions of the Act which have effect in relation to Crown employment), for paragraph (c) there is substituted—

    ''(c) Parts 6 to 8A,''.'.

No. 202, in page 70, line 27, at end insert—

    'In section 192(2) (provisions of the Act which have effect in relation to service as a member of the armed forces)—

    (a) in paragraph (aa), for ''section 45A'' there is substituted ''sections 45A and 47D'', and

    (b) for paragraph (c) there is substituted—

    ''(c) Parts 7, 8 and 8A,''.'.

No. 203, in page 70, line 27, at end insert—

    'In sections 194(2) and 195(2) (provisions of the Act which have effect in relation to employment as a member of the House of Lords or House of Commons staff)—

    (a) in paragraph (c), for ''and 47C'' there is substituted '', 47C and 47D'', and

    (b) for paragraph (e) there is substituted—

    ''(e) Parts 7, 8 and 8A,''.'.

No. 204, in page 70, line 27, at end insert—

    '(1) Section 199 (application of the Act to mariners) is amended as follows.

    (2) In subsection (2) (provisions not applying to share fishermen)—

    (a) after ''47C,'' there is inserted ''47D,'', and

    (b) for ''Parts VII and VIII'' there is substituted ''Parts 7, 8 and 8A''.

    (3) In subsection (8) (provisions whose application is subject to the limitation in subsection (7)), for paragraph (d) there is substituted—

    ''(d) Parts 7, 8 and 8A,''.'.

No. 205, in page 70, line 27, at end insert—

    'In section 225 (definition of calculation date for the purposes of the calculation of a week's pay in relation to cases connected with rights during employment), at the end there is inserted—

    ''(6) Where the calculation is for the purposes of section 80I, the calculation date is the day on which the application under section 80F was made.''.'.

No. 206, in page 70, line 31, leave out paragraph 38 and insert—

    '(1) Section 227(1) (maximum amount of week's pay) is amended as follows.

    (2) Before paragraph (a) there is inserted—

    ''(za) an award of compensation under section 80I(1)(b),''.

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    (3) For ''or'' at the end of paragraph (b) there is substituted—

    ''(ba) an award under section 112(5), or''.'.

No. 207, in page 70, line 42, after '80B,' insert '80G,'.—[Alan Johnson.]

Schedule 6, as amended, agreed to.

Clause 52 ordered to stand part of the Bill.

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