Norman Lamb: We support wholeheartedly the approach taken towards developing flexible working, and it seems to me that, by and large, the Bill has a light touch and gives a gentle legislative push to encourage the employer and employee to talk and achieve agreement about working arrangements that suit both sides. I mentioned that in interventions during the previous couple of sittings, and existing legislation and case law development has changed the reality for many women as regards indirect discrimination. It concerns mostly women who have responsibilities for child care, but can include those who care for an elderly relative. Statistically, such carers are predominantly women, so there may even be a case for a woman who is looking after an elderly family member to pursue a case of indirect discrimination. As far as childcare responsibilities are concerned, a woman can now, under indirect discrimination legislation, go to an employer and request a change in terms and conditions, including suggesting the possibility of working from home. That is already on the agenda. If employers reject the proposal put forward by the woman, they face a potentially costly claim for indirect sex discrimination.
I have witnessed interesting shifts among many employers who often start off with the knee-jerk reaction of saying, ''No, we cannot possibly agree to a change. This is the contract of employment, this is what we employ people to do. The suggestion of part-time or job-share arrangements is unacceptable.'' But when one points out to employers that the law actually requires them to look at the issue and explore the options with the employee, many of them then realise that the arrangement proposed is workable. It often means that they retain a potentially valuable employee and it makes them look at their own processes and explore ways in which they may be able to work more efficiently. Sometimes they realise that they can employ someone part time instead of full time, and therefore make a cost saving. I have seen with my own eyes, the way in which indirect discrimination legislation has encouraged the development of a new
Column Number: 617environment, which has by and large worked to the benefit of both employers and employees.
In that sense, I take issue with the position taken by the hon. Member for Runnymede and Weybridge, in which he indicates that by and large the conservative approach is to leave it to the parties to sort out arrangements between themselves and allow the demand for labour to push and cajole employees in the right direction. Here is a case in point where legislation has actually had a beneficial effect for employees, and for employers.
The indirect sex discrimination route can be complex and confusing. There is a massive degree of understandable ignorance, on both the employer's and the employee's side, about how the law works. To provide a simpler route, seems to me to be very sensible.
The hon. Member for Runnymede and Weybridge alluded to the serious possibility of the new provisions being laid on top of the provisions for indirect discrimination. It is inevitable that any lawyer will advise an employee to pursue two claims—one under the Bill, and one for indirect sex discrimination. It is quite possible that a claim under the Bill will fail, because the employer has factually stated a ground of refusal, but what has happened may still amount to a case of indirect sex discrimination.
It seems to me that one legislative framework would ultimately be better. If we can move towards simplicity by having one code that deals with employees' rights to ask for flexible work, that will be better. We are still left with the confusions that surround indirect discrimination and the uncertainty of a tribunal's conclusion. Therefore, it would be wise for the Government to move towards a simpler framework.
The hon. Member for Runnymede and Weybridge alluded to what he saw as a movement towards uneven rights between employers and employees in requesting changes to terms and conditions. I do not see that as a concern. I think that the employer actually has significant rights. If, for sound business reasons, an employer wants to change terms and conditions in any way and wants, for example, a change of place of work or a change of hours, he or she has the ultimate sanction, as an employee can fairly be dismissed under existing legislation for refusing to agree.
There is a reasonable balance between employer and employee, and the provision would improve it. Often, employers do not realise the strength of their position under the law. The frustrating thing for employers is that they often have to pay for expensive legal advice to find out their rights.
Mr. Hammond: Do I interpret that to mean that the hon. Gentleman supports accompaniment for employers? He has suggested that they already have an unlimited right, but does he agree with the principle that is being pushed?
Norman Lamb: I have accompanied employers to discussions of all kinds with employees, and I think that there is nothing wrong with doing that. If the employees are represented, it seems reasonable for
Column Number: 618employers—especially small employers—to have someone with them. In a reasonable sized company, the human resources department would normally send someone, and there would probably be two people from the employer's side. However, it would be eminently reasonable for the employer in a small company—a shopkeeper, for example—to be able to have someone with them to help them when the employee has representation.
The hon. Member for Runnymede and Weybridge made a fair point about the carers of elderly relatives. I fully accept that one deals with an issue at a time, and I have not tried to amend the clause by adding new groups of people. However, we are all trying to make things easier for carers, and there is a case for arguing that someone who cares for a disabled or elderly relative should have the same right to request a change in working arrangements from an employer. He or she might, for example, want to come in half an hour late because he or she needs to bathe a relative. The Government should consider that.
Many of the amendments, including amendments (a), (f), (h) and (j), deal with the question of using writing in the procedure. For the sake of clarity and certainty, it would make eminent sense to base the process in writing rather than on a conversation that might take place just as someone is leaving the workplace, and that can later be claimed to amount to an application under the Bill. All the problems that the hon. Member for Runnymede and Weybridge described could occur if the process were based on verbal requests.
The framework is quite prescriptive and many things must be put into the application. It seems daft to base it on a mere verbal request. I would like to shift the balance slightly, and that would be the effect of amendment (b), which would leave out paragraph (c) of proposed section 80F(2), which states that an employee must
It seems over-prescriptive to place that rather complex requirement on employees, and if it were a verbal requirement, it would be more difficult for an employee to lodge a basic application. Clearly, it is the sort of thing that should be discussed between the parties, but I would prefer a simpler written application that does not go into that detail. I entirely agree with the hon. Member for Runnymede and Weybridge that it would make sense for written applications to include the reason why he or she needs to make it to look after the child. I prefer a simpler, written application to a more complex, verbal one.
Mr. Hammond: I disagree with the hon. Gentleman about removing paragraph (c), as that is an important pointer to asking the employee to focus not only on his or her needs, but on the impact that they will have on the employer. In many cases where there are good relations, merely being forced to focus on that issue will lead the employee to think about how to modify the request to make it more acceptable to the employer and more compatible with the business.
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Norman Lamb: I agree with the sentiment behind what the hon. Gentleman said. I hope that the process of discussion encourages employees to see the employer's problems as well as the other way round. The paragraph is over-prescriptive and makes it too difficult for some people to make what should be a simple application to start the process.
Amendment (c) would change 14 days to 14 weeks. I speak to the amendment on behalf of the Federation of Small Businesses, who wanted the issue aired, to give it the opportunity to have its case made. This is a difficult issue about the limitation on the group of parents who can take advantage of this, and the amendment would shift it further back to 14 weeks before the sixth birthday. I know as a parent of a teenage boy that demands on parents of teenagers can be just as difficult as those on parents of very small children. The hon. Member for Runnymede and Weybridge mentioned carers of disabled or other relatives. The situation of parents of teenaged children must also be recognised, with all its difficulties and demands these days.
Amendment (d) relates to the right of the employer to request that the provisions revert to the terms and conditions of employment before the change. I speak to it to air another concern of the Federation of Small Businesses. I accept that the amendment's wording is not ideal. It adds little to the existing legislative framework, but is simply saying that the employer may request a change. As has already been said, if there are sound business reasons for that request, the sanction of dismissal encourages the employee to agree. I want to use that as an opportunity to make the point that employers and employees can agree a temporary change under these provisions. It is down to the parties to work out the change that suits both sides.
I hope that the Minister will respond to that point and endorse the fact that the employee may accept a temporary change as a legitimate change that may be reviewed in two years when another request is considered. It would be possible for something to be written up to confirm the agreement that for the next two years the employee was allowed to come in half an hour later than usual.
Amendment (e) would leave out section 80G and insert 80F. This is my proud moment, and my first opportunity to have an impact on legislation.
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