Standing Committee E
Tuesday 23 February 1999
(Morning)
[Mr. Peter Atkinson in the Chair]
10.30 am
Mr. Tim Boswell (Daventry): On a point of order, Mr.
Atkinson. First, I welcome you to the Chair. I hope that our
debates will not be quite as protracted as when we last
considered employment matters.
I raise two small matters in connection with the Official
Report. In doing so, I wish to make it clear that all members of
the Committee have the greatest respect for Hansard. The problem
may have arisen either because I did not use an adjective or
perhaps because I mumbled away from the Chair—and the
reporter—which I should not do. May I ask for a correction
to be made to column 8. I was reported as saying:
``I do not want to be trapped into saying that that means
that all large businesses are nice to their
employees''.—[Official Report, Standing Committee E, 16
February 1999; c.8.]
My recollection—certainly it was my intention—is
that I said ``all small businesses''. There is no self-evident
link between size and the employment-friendliness of businesses.
The second correction that I seek is to column 35; there was
either a mishearing or a misunderstanding. I believe that I
referred to the Commission spokesman's reported remarks about the
working time directive. It is reported as being the ``Low Pay
Commission'', —when it should have been the European
Commission.
The Chairman: As the hon. Gentleman knows, that is not matter
for the Chair. However, I am sure that the Hansard reporter has
heard what has been said.
Mr. Ian Bruce (South Dorset): On a point of order, Mr.
Atkinson. I wonder whether I might also ask for the record to be
amended. At column 19, when I quoted what I had said on Second
Reading, the Hansard reporter used the words that were printed
in that original report. However, that report contained a
mistake, and I have asked the Editor of the Official Report to
correct it. I said that I advised a company that owns an
employment business and an employment agency. The Minister knows
the difference between those two, but many people believe that
they are one and the same thing, and it has wrongly been reported
as being ``a business employment agency''.
Clauses 8, 9 and 10 ordered to stand part of the Bill.
Schedule 3
Leave for Family and Domestic Reasons
Mr. Boswell: I beg to move amendment No. 30, in page 47, line
42, after first `be', insert `reasonably'.
I hope that it is noted that the Committee has passed three
clauses in less than a minute—something that often takes
three weeks. Please do not fear that we are suffering from
narcolepsy, Mr. Atkinson. We thought it bettter to debate the
amendments and, if you see fit, for us to debate some of the
general issues in a schedule stand part debate.
My mind always thinks in numerical sequences of a fairly
simple nature; we have a series of triplets this
morning—and I am not talking about maternity leave. Three
clauses pave the way for one schedule; we shall be debating three
separate matters—maternity leave, paternity leave and what
might loosely be called domestic incidents; and there are three
degrees of acceptability. Subject to the views of my hon.
Friends, we would probably say that those matters are listed in
the Bill in a diminishing order of acceptability.
Maternity leave is not without difficulties, which we shall
come to in the amendments. Parental leave gives rise to further
difficulties, because it is a new concept. The concept of
domestic emergencies gives rise to considerable concern. However,
we thought it better to consider those matters in what, to borrow
a phrase, might be described as a series of short, sharp debates
on the various points raised by my amendments and those of the
hon. Member for Eastleigh (Mr. Chidgey). We do not do that in any
spirit of faction; we seek to improve or test the Bill in ways
that may be acceptable to both sides of industry.
Amendment No. 30 seeks to introduce the concept of
reasonableness into employees' actions. The Minister will tell
us—having consulted others who also wish to tell
us—that all the parties concerned wish to be reasonable in
the matter. I am sure that that is true, certainly at what used
to be called the macro level. If the Minister talked to the CBI
and the TUC about it, he would have a civilised discussion; they
do not wish to rock the boat and would seek to make the
provisions work. The Minister may have encountered in his
industrial experience cases of employers who occasionally did not
see reason or of employees who occasionally behaved in a foolish,
ill-considered or, to use a perhaps better term, inconsiderate
way. I stress that such incidences are the exception, not the
rule.
My amendment proposes that a female employee—who can
hardly, even these days, time or predict her
pregnancy—should nevertheless act reasonably in regard to
the interests of her employer and her fellow employees by trying,
as far as possible, to fit in her period of notice and her leave
with their requirements. There will be circumstances in which
that is difficult to do; indeed, if it is so difficult, the test
of reasonableness takes on a different implication. However, if
people co-operate with their employer in giving notice and in
working out their period of leave, in relation to other
employees' holiday plans, for example, that seems good industrial
practice. Dare I say that it is no different from how Ministers
are supposed, in conducting their legislative activities or
reaching decisions, to have over their shoulder that
judge—, to whom I have referred in regard to judicial
review—who would expect the Minister to behave reasonably,
in accordance with the Wednesbury rules, in any action?
Similarly, all that the amendment seeks—although not with
the degree of sophistication or, one hopes, the degree of
judicial proof—is to ensure that employees behave
reasonably to their employers. Even if the Minister is
disinclined to accept the wording of the amendment, it none the
less sets out an important principle.
If we have substantive concerns about the maternity
provisions, they arise out of the interaction of maternity leave,
ordinary leave and the additional leave that is claimed. It is
not so much the duration of that leave that is of concern as
situations in which an employer is, or believes himself to be,
strung along by not knowing whether the employee will choose to
return to work. That can last for almost a year or, in the case
of consecutive pregnancies, almost indefinitely.
We must always remember the interests of small business. The
Minister and the Secretary of State now seek through the numerous
briefings that appear in the press, to make it clear that they
do. That is a separate issue and we shall come to it later.
However, in practical terms—I re-examined the regulatory
impact assessment before our sitting this morning—if a
company has 100 employees and there is an anticipated pregnancy
rate of 1.6 per cent., it would not be too difficult for a
properly organised human resources department to organise those
pregnancies.
The Minister of State, Department of Trade and Industry (Mr. Ian McCartney): In the hon. Gentleman's example, are all the
employees female, and therefore biologically capable of
pregnancy? Is he referring to the employment relations
department's fixing the pregnancy in any sense other than dealing
with the arrangements for the time of leave?
Mr. Boswell: The Minister is precisely right on both those
matters. Long may his interventions continue in that vein. If I
recall the regulatory impact assessment correctly, without
checking, it boils down to a net pregnancy rate, if I may use
that rather loose phrase, of 0.3 per cent. It is a very small
amount. In a company with 100 employees, it is spread over a
manageable number of employees. That is one reason why we are not
arguing the toss so much about what is intended. The changes have
the welcome effect of tidying up the matter, and the cost is
indeed small.
Mr. John Bercow (Buckingham): I am pleased to support the
amendment. It is not incumbent on the Minister to ensure that the
conditions that may be prescribed for the purposes of the
schedule are reasonable, rather than incumbent on the employee
to ensure that her behaviour is reasonable?
Mr. Boswell: Both will have to apply. Legislation does not absolve an
employer, or an employee, from behaving sensibly. Behind some of
our doubts about the Bill is our worry that the matter will
inadvertently be encouraged into the hands of the barrack room
lawyer. We want such matters to be resolved readily.
A largish employer, with a sophisticated human resources
department and a good spread of employees, will probably emerge
without too much difficulty. However, for the employer of one or
two persons—for the avoidance of doubt, for the first time
in Committee, I declare my interest, having one employee,
although not a female employee—it is a much greater burden
if that person becomes pregnant. We need to ensure that the
arrangements are as practical for such a small business as for
a larger one. On a loose definition, small businesses may employ
half the employees in the country. They are the dynamic part of
the economy in terms of creating employment. We therefore do not
want inadvertently to damage what they do. We want reasonable
legal provision, and would in turn encourage both sides of
industry to act reasonably.
My hon. Friend the Member for Buckingham (Mr. Bercow) reminds
me of one little bit of the triplet that, in my haste and
excitement at having passed three clauses so quickly, I almost
omitted. I remind the committee that we are going through a
three-stage process of legislating. Three clauses say nothing,
but pave the way for a schedule that says rather a lot in the
small print. Those are the first two stages. The third stage is
the regulations that arise from the Bill and apply in several
places, which we have not seen.
The purpose of exchanges in Committee is to try to inform the
Minister's thinking on what will be included in the regulations.
It is not easy to retrieve the situation once they appear in
draft form, when Ministers are committed to them and
consultations have taken place. Problems can still arise in
practice, especially for the smaller business. We must kick
around some of the issues sensibly to discover what the Minister
is thinking about and, perhaps, angles that neither he nor I have
anticipated, and whether we can improve the Bill.
One of the points that arises from the amendment is the duty
on employers and their employees to act reasonably, whatever the
Bill says. Exchanges may be necessary about provisions in the
draft legislation that might make it more difficult for them so
to act. However, we shall reach those in due course, after
consideration of the amendment.
10.45 am
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