House of Lords - Explanatory Note
Employment Relations Bill [H.L.] - continued          House of Lords

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New section 74: Redundancy and dismissal

154.     Under this new section the Secretary of State may make provision in regulations about the treatment of an employee at any stage during maternity leave when a redundancy situation occurs. It is intended that the regulations will have the same effect as the current provisions in sections 77 and 81 of the 1996 Act, under which women on maternity leave or returning to work must be offered alternative employment where the employer has a suitable available vacancy, thus ensuring that protection of women who are on maternity leave when there is a redundancy situation is not reduced. The general reference to dismissal other than redundancy is needed so that the right to return to work can be disapplied where the woman is dismissed during maternity leave (which will be automatically unfair if this is for reasons relating to pregnancy or maternity - see new section 99 inserted by paragraph 18 of Part III of the Schedule - but could be fair, for example, if it related to conduct occurring prior to maternity leave).

155.     New section 74(4) provides power for the regulations to replicate provisions currently in section 96(2) of the 1996 Act, which in effect provide that employers with five or fewer employees do not have to take a woman back after the longer period of maternity absence if it is not reasonably practicable for them to offer her either her old job or a suitable alternative.

New section 75: Sections 71 to 73: supplemental

156.     This new section further prescribes the scope of the powers conferred in the previous new sections for the Secretary of State to make regulations in respect of ordinary maternity leave, compulsory maternity leave and additional maternity leave. Subsection (1) provides that the regulations may:

  • (paragraph (a)): set out notice and evidence requirements and procedures to be followed. It is intended that, as now, an employee will be required to notify the employer of her pregnancy and the week the child is expected to be born, and if requested produce medical confirmation. Currently, there are a number of different notification procedures required before maternity leave, after the birth (if required by the employer) and before return to work. This power is intended to be used to rationalise and standardise notice requirements where possible, and the planned consultation will inform how this is to be done;

  • (paragraphs (b) and (c)): set out what happens if the notice requirements or procedures are not followed, or if either the employee or (if any notification requirements were placed on the employer) the employer fail to do what they have notified they will do. Under the current provisions a woman can lose her right to return to work if she fails to meet any of the procedural requirements, even where the employer is clear about the woman's intentions, or if she cannot return to work on a date she has notified, for example because of sickness. Some respondents to Fairness at Work argued that losing one's right to return to work was a disproportionate penalty for a technical infringement of the procedures. This provision would allow smaller penalties to be stipulated, for example the start or finishing date for maternity leave could be postponed until the required notice was served. Again, further consultation will inform how this power is to be used;

  • (paragraph (d)): set out what happens where the woman has a contractual as well as statutory right to maternity leave. This would enable reintroduction of the current provisions in sections 78 and 85 of the 1996 Act, which allow the woman to choose whichever is better of her contractual or statutory rights in a particular respect;

  • (paragraph (e)): make consequential changes to the provisions which set out how to calculate 'a week's pay' under the 1996 Act for the purposes of redundancy payments and compensation for unfair dismissal. This will enable the regulations to ensure that redundancy payments and compensation are based on an employees' normal pay rather than any pay she received while on maternity leave;

  • (paragraph (f)): make consequential amendments; and

  • (paragraph (g)): make different provision for different cases or circumstances; this is a normal provision allowing some flexibility, and may be used, for example, to cover the situation where a late birth necessitates the extension of maternity leave (see under new section 72 above).

 

Part VIII, Chapter II: Parental Leave

157.     Part I of Schedule 4 sets out the basis for the parental leave scheme which will be inserted into the 1996 Act as a new Chapter II of Part VIII, following on from the maternity leave provisions. The new rights to parental leave implement requirements of the Parental Leave Directive (Council Directive 96/34/EC), which was applied to the UK by Council Directive 97/75/EC.

 

New section 76: Entitlement to parental leave

158.     This new section provides that the Secretary of State must make regulations entitling a parent to a minimum of three months leave in order to care for a child, providing qualifying conditions as set out in the regulations are satisfied.

159.     The new section gives the Secretary of State powers to prescribe in regulations:

  • under subsection (1)(a): the qualifying period of employment: it is intended that the regulations will provide for a one year qualifying period for the right to parental leave, the maximum period allowed under the Directive;

  • under subsection (1)(b): who qualifies in terms of whether they have or will have responsibility for a child;

  • under subsection (2)(a): the extent of an employee's entitlement to parental leave in respect of a child. This will enable the regulations to specify the length of leave, which under subsection (3) must not be less than three months, the minimum period required by the Parental Leave Directive;

  • under subsections (2)(b) and (4): when parental leave may be taken. This will enable the regulations to set the maximum age of a child in respect of whom parental leave may be taken (which could be below 8 years, the upper limit specified in the Parental Leave Directive). The regulations will also be able to make appropriate provisions for adoptive parents, who may adopt older children or need leave before formal adoption takes place; and

  • subsection (5): further details, including circumstances in which employers may postpone leave and flexibility to specify time limits and minimum periods. Factors which might count towards a decision by the employer to postpone the taking of leave by an employee could include a peak business period or a peak absence period, the level of the employee's skill and responsibility, or the difficulty in finding a short term replacement or covering the absence by other means. The regulations could include limits on the number of times or length of time for which leave could be postponed; some of the key options for consideration on timing are whether parental leave should be required to be taken as a single block, or in blocks of minimum length, or at specified times (eg with a proportion to be taken within the child's first year).

New section 77: Rights during and after parental leave

160.     As for additional maternity leave (see under new section 73 above), the employment contract will continue in existence during parental leave and the terms and conditions of employment, other than remuneration, continue to apply to any extent set out in the regulations. Also, as for additional maternity leave, the Government's current intention is that, while employees will not lose seniority while on parental leave and both they and their employer will continue to be bound by duties of confidentiality and trust etc, employers should be free in general to decide what, if any, other terms and conditions will apply during parental leave.

 

New section 78: Special cases

161.     This section enables the regulations to make special provision:

  • (under subsections (1) and (2)): about redundancy and dismissal. This will enable the regulations to specify, for example, what happens if the job disappears because of redundancy or the employee is dismissed for reasons not connected with parental leave;

  • (under subsections (3) and (4)): providing for the option of part-time working over a longer period, perhaps limited to particular circumstances; and

  • (under subsection (5)): providing for transfer of parental leave in specified circumstances. The Parental Leave Directive says that, in principle, leave should not be transferable from one parent to another. Regulations could however allow for this if there were appropriate exceptional circumstances.

 

New section 79: Supplemental

162.     This new section makes supplementary provision as to the scope of the Secretary of State's regulation-making powers. Further consultation will inform how these additional provisions will be used, but some possibilities are set out below. They enable the Secretary of State:

  • (under subsections (1)(a), (b) and (c)): to set out procedures to be followed, notices and evidence required, and records to be kept by employers and employees in relation to a period of parental leave. For example, the regulations could specify that employees must:

    --    give notice of a specified length,

    --    give written notice,

    --    give reasons,

    --    provide evidence of entitlement, and

    --    keep records of leave taken,

    and that employers must:

    --    respond within a specified time,

    --    give reasons for postponement or refusal, and

    --    keep records of leave taken by employees;

  • (under subsections (1)(d) and (e)): to specify the consequences of failure to comply with these provisions;

  • (under subsection (1)(f)): as for maternity leave, to enable employees to choose to exercise contractual rights, where these are better;

  • (under subsection (1)(g)): to make consequential amendments; and

  • (under subsection (1)(h)): to make different provision for different cases or circumstances (additional flexibility, as under the maternity leave provisions - see new section 75(1)(g)). This would enable different provision to be made, for example, in relation to adopted children.

163.     New subsection (2) is a technical measure enabling (as for maternity leave under new section 75(1)(e)) provisions in the 1996 Act concerned with the calculation of a week's pay to be modified to ensure, for example, that employees' entitlement to redundancy pay is not reduced because they were on parental leave on the calculation date for that payment.

164.     New subsection (3) provides additional powers to ensure the regulations can make any other provision which may be necessary or expedient to implement the EC Parental Leave Directive or to deal with the UK obligations under the Directive. This power ensures that a single set of regulations can be made covering all provisions on parental leave.

 

New section 80: Complaint to employment tribunal

165.     This new section provides for employees to complain to an employment tribunal that their employer has unreasonably postponed their leave or obstructed their taking it (for example, by disputing that they qualify for the right). The remedies - a declaration and compensation - are in line with existing remedies in the 1996 Act (for example, under section 51, in relation to time off for public duties), and the new right to time off for domestic incidents (new section 57B, see below).

 

New section 81: Collective and workforce agreements

166.     This new section provides for collective or workforce agreements to have effect in place of provisions in the regulations, except where the regulations exclude this. In order to ensure that there is no doubt about which employees have what rights, and that they will be able to enforce their rights, this applies only where the agreements are incorporated into the individual's contract of employment. These provisions will be enforceable through the employment tribunals.

Clause 8 and Part II of Schedule 4: Time off for domestic incidents

167.     This clause and Part II of Schedule 4 insert new provisions after section 57 of the 1996 Act giving employees the right to take a reasonable amount of unpaid time off work to deal with a domestic incident. This implements the part of the Parental Leave Directive not implemented by the parental leave provisions. The intention is that this right will allow employees to take necessary time off to deal with an urgent problem where it is reasonable in all the circumstances for them to do so. It is also to ensure that the amount of time off which is reasonable is linked to the amount of time necessary to deal with a short-term problem or make longer term arrangements to deal with it, to the needs of the employer's business and the consequences of the employee's absence, and other factors which may be set out in regulations. For time off to be justifiable, the employee's presence or attendance would be crucial to resolving the problem or, where the incident affects someone other than the employee, to the welfare and/or recovery of that person.

New section 57A: Right to time off for domestic incidents

168.     This new section sets out the basic right for an employee to take a reasonable amount of time off from work, where this is reasonable, to deal with a domestic incident. The types of incidents which could be covered include:

  • dealing with the sudden illness or accident of a member of the employee's family or someone who relies on the employee;

  • dealing with a crisis relating to a member of the employee's family requiring the employee's immediate attendance, for example to deal with a fracas at school in which the employee's child has been involved;

  • dealing with the death of someone close to the employee, or where the employee is the executor or fully responsible for the funeral and other bereavement related arrangements;

  • dealing with a domestic crisis such as unavoidable severe damage or disruption to property, like flooding, fire or burglary; and

  • making arrangements for looking after children due to the sudden illness or incapacity of the normal carer (which could be the other parent).

169.     Under subsection (3), the Secretary of State is given powers to make regulations. The details will be subject to consultation, but the regulations may:

  • (under paragraphs (a) and (b)): specify factors and circumstances to be taken into account to determine whether time off would be reasonable. These could include the circumstances of the business, as well those of the employee;

  • (under paragraphs (c) and (d)): specify how much time off is reasonable, with the power to limit the number of days per incident or per period. Whether or not a limit is set, the amount of time off the employee has already taken is likely to be a relevant factor; and

  • (under paragraphs (e), (f) and (g)): as for maternity and parental leave, set out requirements in relation to notices, evidence and procedures to be followed and the consequences of not doing so, or not doing what one has notified one would do. The nature of domestic emergencies is such that advance notice may not be possible, but the power would enable the regulations to require, for example, notification as soon as practicable.

New section 57B: Complaint to employment tribunal

170.     This new section sets out the enforcement procedure through the employment tribunals, following the precedent set in existing provisions conferring rights to time off (see section 51 of the 1996 Act: complaints relating to time off for public duties). As is usual for complaints to employment tribunals, a complaint must normally be made within three months. Where it is well-founded the tribunal is required to make a declaration to that effect, and may award compensation if it considers it fair to do so taking into account both the employer's fault and the effect on the employee.

New section 57C: Collective and workforce agreements

171.     As for parental leave, this new section provides for employers and employees to override some or all of the details to be set out in the regulations if they agree upon different procedures, under a collective or workforce agreement which forms part of their contract of employment.

Clause 9 and Part III of Schedule 4: Consequential amendments

172.     Clause 9 gives effect to Part III of Schedule 4, which sets out changes to current legislation resulting from the provisions relating to maternity leave, parental leave and time off to deal with domestic incidents. Most of these are technical consequential changes, but the Schedule also sets out the right not to suffer detriment and to protection from dismissal for reasons connected with exercising these rights.

173.     The provision for these rights in part implements requirements of the Parental Leave Directive, and fulfils proposals in Fairness at Work; and in part replaces existing provisions. As with the other family rights, the provisions contain regulation-making powers. This will enable all the rights and protections to be covered together in regulations. References to paragraphs in the following are to paragraphs of Part III of Schedule 4.

174.     Paragraph 10 inserts a new section 47C into the 1996 Act giving employees the right not to suffer detriment (ie unfavourable treatment) for reasons, to be set out in detail in regulations, relating to pregnancy, maternity, parental leave or time off to deal with domestic incidents, including matters connected with collective or workforce agreements on parental leave and time off. While current legislation already provides the right not to be dismissed for reasons relating to pregnancy and maternity, there is no explicit right not to suffer detriment for such reasons. In practice, however, unfavourable treatment on these grounds will almost always be unlawful sex discrimination, so including pregnancy and maternity in this provision is to bring the maternity provisions in line with those on parental leave and time off for domestic incidents, rather than a significant additional right in itself. The new right follows the same lines as existing rights not to suffer detriment in Part V of the 1996 Act.

175.     Paragraph 18 replaces section 99, which makes it automatically unfair to dismiss a women for reasons connected with pregnancy or maternity, with a power to make similar but wider provisions relating also to parental leave, time off to deal with domestic incidents and related collective or workforce agreements about these.

176.     Paragraph 48 amends the order-making powers in the 1996 Act to provide that the regulations on maternity, parental leave and time off for domestic reasons are made under the affirmative procedure, requiring a debate in both Houses of Parliament.

Disciplinary and grievance hearings

Clauses 10-13: Disciplinary and grievance hearings

177.     The ACAS Code of Practice No 1 on "Disciplinary Practice and Procedures in Employment" states that disciplinary procedures should "give individuals the right to be accompanied by a trade union representative or by a fellow employee of their choice" at disciplinary interviews. The Code does not have the force of law but it must be taken into account by employment tribunals when hearing unfair dismissal cases where it appears to the tribunal to be relevant. In practice, any failure by an employer to allow a worker to be accompanied can count against an employer in tribunal hearings and can result in a ruling that the dismissal was unfair. There is no statutory obligation to put in place disciplinary or grievance procedures. However, section 3 of the 1996 Act obliges employers (employing 20 or more employees) to inform their employees of disciplinary rules, the name of a person to whom they can apply for redress of any grievance and the manner in which any such application should be made.

178.     The purpose of clause 10 is to create a statutory right for a worker to be accompanied by a fellow employee or trade union official of his choice during grievance and disciplinary procedures. Clause 11 provides a remedy for individuals following a failure to comply with the right to accompaniment. Clause 12 provides a right not to be subject to any detriment as an individual on the grounds of having sought to exercise the right to accompaniment. Clause 13 is an interpretation clause and provides definitions for some of the terms used in these three preceding clauses.

179.     The Bill does not place a duty on trade union officials or fellow employees to perform the role as the accompanying individual. Nor does it place any additional requirements on employers to establish disciplinary or grievance procedures where none currently exists.

180.     Clause 10(1) provides that the right applies when a worker is invited by his employer to attend a disciplinary or grievance hearing and makes a reasonable request to be accompanied. Clause 10(2) states that the right extends to accompaniment by a single individual of the worker's choice who is to have permission to address the hearing and to confer with the worker during the hearing but not to be permitted to answer questions on behalf of the worker. Clause 10(3) provides that the accompanying individual must be either a trade union official or a fellow worker currently employed by the same employer as that of the individual concerned.

181.     Clauses 10(4) and 10(5) deal with the timing of the hearing and provide that a worker may propose an alternative time for the hearing if his chosen companion is unavailable to provide accompaniment at the time of the hearing proposed by the employer. They also provide that the employer is bound to accept the alternative time provided that it is reasonable and that it falls within five working days of the date originally proposed by the employer.

182.     Clause 10(6) provides that an employer must permit an employee time off to accompany a fellow worker and clause 10(7) provides that such time off should be paid. This entitlement to paid absence is defined by reference to the existing sections of the 1992 Act which specify an employer's obligations to provide paid time off to the officials of recognised trade unions when carrying out their trade union duties.

183.     Clause 11 provides for a right for individuals to apply to an employment tribunal to remedy an employer's failure, or threat to fail, to comply with the right to accompaniment. It also sets the time limit for bringing such a complaint to a tribunal and provides a remedy for a successful complaint of compensation up to a maximum of two weeks' pay. Subsections (4) and (5) set out the basis for calculation of a "week's pay" in these circumstances and provide that the award is to be subject to the upper limit on a week's pay provided for by section 227(1) of the 1996 Act. No compensation will be available for a claim in respect of the right to accompaniment if, in considering an award for the related unfair dismissal, a tribunal makes a supplementary award for compensation under section 127A(2) of the 1996 Act where the employer provided a procedure for appealing against dismissal but prevented the complainant from using it.

184.     Clause 12 provides that the worker has the right not to be subject to any detriment by any act, or failure to act by his employer, on the grounds that he sought to exercise the right to be accompanied or sought to accompany a worker in accordance with clause 10. It expressly provides that accompanying workers have these rights whether or not they share the same employer as the worker seeking accompaniment. An employer will not, however, be required to pay his employee for time taken off to accompany another employer's worker. The effect of subsection (2) is that existing provisions permitting a worker to complain to an employment tribunal that he has been subject to detriment on the grounds defined by sections 44 to 47 of the 1996 Act are to apply on contravention of subsection (1). This means that the employer will be placed under an obligation to show the ground for which he failed to act. The effect of subsection (3) is that where the reason for dismissal is the exercising of rights under clause 10, or the fact that a person has accompanied another in accordance with that clause, a dismissal will be automatically unfair. Subsection (4) provides that rights under this clause are not subject to any age limit or qualifying period. Subsection (5) extends the availability of interim relief, provided for by sections 128 to 132 of the 1996 Act, to dismissals for seeking to exercise the right to be accompanied. Subsection (6) extends the meaning of references to an "employee" in relevant parts of the 1996 Act to include references to a "worker".

185.     Clauses 13(1)-13(3) define "worker" for the purposes of these rights. They expressly provide for the inclusion of agency workers (defined in subsection (2)); home workers (defined in subsection (3)) persons in Crown employment (except members of the naval, military, air or reserve forces of the Crown); and relevant members of House of Lords or House of Commons staff. The closing words of subsection (2) and subsection (3) have the effect that, in the case of an agency worker, either the agent or the principal is deemed to be the employer; and in the case of a home worker, the employer is deemed to be a person who contracts for work from a home worker for the purposes of the right. Subsection (4) defines "disciplinary" and "grievance" hearing for the purposes of clause 10. It provides that the hearings to be included for the purposes of that clause are those which are held in the course of an employer's existing disciplinary or grievance procedure, which means that an employer will not have to set up procedures where they do not exist. A disciplinary hearing is defined as a hearing which could result directly in the employer administering a formal warning to a worker, or taking other action against him; and a grievance hearing is defined as a hearing which concerns the performance of a duty by the employer in relation to a worker. This means a legal duty, ie statutory, contractual or common law. The purpose of this subsection is to ensure that workers do not have a right to accompaniment at hearings where trivial or minor complaints are determined. Subsection (5) sets out the definition of "working day" for the purposes of ascertaining whether workers have suggested an alternative date for a hearing within the time limit of five working days.

 
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Prepared: 22 April 1999