Committee for Enterprise,
Trade and Investment
Thursday 5 September 2002
MINUTES OF EVIDENCE
Dr Birnie (Chairperson)
Mr Carrick (Deputy Chairperson)
Mr R Hutchinson
Mr R Gamble ) Department for
Mr W Caldwell ) Employment and Learning
Ms E Regan ) Assembly Research and
The Chairperson: We will consider the general principles of the amendments this afternoon. It remains to be seen whether we will complete clause-by-clause consideration today. Eileen Regan of the Assembly Research and Library Services has provided the paper at tab 4a of the Committee’s information pack in response to legal and statistical questions that I asked in August about possible amendments. I do not propose to talk about the paper now, but I will refer to it during our discussion of certain amendments because it expands on certain points and provides relevant evidence.
At tab 4h the Minister outlines her proposal to introduce two amendments during the Consideration Stage. The first would create an exemption with respect to the right to request flexible working hours for persons who work in the armed forces. The second would introduce the Labour Relations Agency to arbitrate in cases in which there is dispute over a request for flexibility.
Mr Carrick: Do the armed forces include the Territorial Army?
Mr Gamble: I am not sure. The amendment was made, at the request of the Ministry of Defence, to the corresponding Employment Act 2002 in Great Britain. It is designed to deal with problems that arise when staff are required to carry out activity immediately, for example, in national emergencies or for instance, if the Army were sent overseas. I will have to check which organisations the armed forces comprise.
The Chairperson: We shall write to the Minister to clarify that point.
Ms McWilliams: Surely the amendment would apply to other categories of emergency workers such as ambulance crews and fire fighters?
Mr Gamble: The emergency services have schedules and arrangements for dealing with emergencies: that is their job. Presumably the armed forces deal with unforeseen circumstances that involve going overseas with little notice.
Ms McWilliams: Would the amendment apply only in relation to deployment overseas?
Mr Gamble: I do not know; it could be used for internal deployment also. That is not specified.
Ms McWilliams: You said that it was designed to cover emergencies overseas. The other issue would be that it relates to European Directives through which other European countries have exempted their armed forces.
Mr Gamble: I do not think this amendment is related to a European ruling.
Ms McWilliams: European countries have looked at the issue.
Mr Gamble: I do not know the answer to that.
The Chairperson: Do you want us to pursue that with the Minister?
Ms McWilliams: Yes.
Mrs Carson: In the second amendment proposed by the Minister, the Labour Relations Agency would be available as an alternative to the industrial tribunal system. Would cases go to the industrial tribunal system first and only to the Labour Relations Agency if the system were full? Would people be given a choice of arbitration? Who would make the decision?
Mr Gamble: The Labour Relations Agency recently introduced an arbitration scheme for cases of unfair dismissal. The rules of the scheme state that if you choose that scheme you give up your right to go to a tribunal. It is a voluntary scheme; both parties in a dispute would decide whether to use that procedure or a tribunal.
Mrs Carson: Therefore it is an either/or situation.
Mr Gamble: Yes.
The Chairperson: Before discussing possible amendments, or amendments in principle, I stress that much of the Bill is extremely welcome in three respects: first, the extension to maternity leave; secondly, the introduction of new rights relating to paternity and adoption leave; and, thirdly, the obligation on employers to consider seriously requests for flexible working. The provisions that we are examining mirror those in the Employment Act 2002, which has already been enacted in Westminster.
Before we look at the amendments I would like the Committee’s agreement that we seek an extension to the Committee Stage, if only as a safety net that we may not have to use. At the moment the Committee Stage ends on 20 September 2002. I would like the Committee’s approval to seek an extension until 18 October 2002.
Members indicated assent
The Chairperson: Let us discuss whether there should be amendments to the Bill, and, if there is time, we will carry out clause-by-clause consideration. Do members have any suggestions or thoughts about amendments?
Dr Adamson: Perhaps the term "employee" should be changed to "worker".
The Chairperson: How do members feel about that? There are a series of pros and cons to such an amendment. The paper provided by the Assembly’s research team gives some background on that. The argument for it is that it would incorporate some of the grey areas — in the last 10 to 20 years the way in which employment contracts are defined has changed. The use of the term "worker" is perceived as more equitable, since a disproportionate number of those in the grey categories, who fall outside the definition of employee but are defined as a "worker", are women. A third argument for such an amendment might be that it anticipates an inevitable change, perhaps as a result of European legislation.
The arguments against are that it might close off an element of business flexibility; that it would impose more costs on small firms; and that there is ongoing consultation on the definition of "employment" in the context of various types of employment rights.
The Assembly Research and Library team’s paper attempts to estimate what the additional cost of extending the definition from "employee" to "worker" would be. The estimates have to be rough and ready, because the data are not readily available.
Mrs Carson: The definitions of "employee" and "worker" are completely different. An employee is someone who has a contract of employment. The term "worker" may include part-time and seasonal staff, so their inclusion in the Bill could present many difficulties to small businesses. Even someone who did relief milking on a part-time basis would be entitled to paternity or maternity pay, and that might be the last straw for a small business. We must think carefully about that.
The Chairperson: The Northern Ireland Equality Commission, which was one of the three groups that gave evidence to us, suggested such an amendment. It argued that in employment law each statute often adopted a different approach to defining the category that should benefit from such legislation. There is a case for using the term "worker", because it was used in the Employment Rights (Northern Ireland) Order 1996, but other legislation, such as the National Minimum Wage Act 1998, uses a different definition. We have a choice to make.
Mrs Carson: What definitions are used in the rest of the United Kingdom or in the European Union?
The Chairperson: In Great Britain the term "employee" is used. The Bill as it stands is almost identical to the provisions of the Employment Act 2002, which was enacted ahead of us. If we amend this Bill in the way that has been suggested, from "employee" to "worker", we will have a different definition from that used in England, Scotland and Wales. As for other European countries, I do not know the answer to your question. You would need to seek advice from the Assembly Research and Library Service, and it might be quite difficult to get a clear comparison.
Mrs Carson: The Committee had representations from small firms and businesses, and coping with such an amendment might just be the last straw. We have to consider the matter carefully.
The Chairperson: I am trying to work out whether there is consensus among Committee members on the issue. Does the Committee wish to retain the term "employee", which would mean that employees only would benefit from its provisions, or should we change it to "worker", which would incorporate additional categories, that is to say greyer areas in respect of which the contractual status is not that of a traditional employment contract?
Mr Carrick: We should not adopt the term "worker" as opposed to "employee". The term "worker" needs to be carefully defined because it could include self- employed people and, as Mrs Carson mentioned, seasonal workers, particularly in rural communities. To use the term "worker" without carefully defining it widens the scope of the Bill, with the result that there would be a catch-all situation. I am unsure whether we seek such an outcome.
The Chairperson: If we adopted the term "worker", we would have to create our own definition, although some statutes contain definitions. The Equality Commission suggested using the Employment Rights (Northern Ireland) Order 1996. The paper by Assembly Research and Library Service gives other definitions, as does some recent 1990s legislation. The Committee would have to choose a preferred definition; for example, would we include temporary or agency workers, home workers and casual workers? Those categories fall within only some of the definitions. I am not detecting among members a particularly strong feeling in favour of moving beyond the term "employee" to "worker".
Mr Dallat: I am sure that the inclination would be to try to include as many groups as possible to maximise equality. In the absence of much of the necessary information it is very difficult to be sure.
The Chairperson: The information is here. We have to make a judgement based on the findings of Assembly research and the evidence of Committee witnesses.
Mr Dallat: The Equality Commission did suggest that the Committee propose the amendment of the Bill to include the term "worker", and I suggest that we do so.
Mr Carrick: If the Committee moves beyond the understood definition of "employee" to adopt the wider term "worker", I envisage huge problems with the regulatory regime and policing the exercise.
The Chairperson: Possibly, but the courts will always have to act based on the definition that they are given. Undoubtedly, cases will be brought by people who feel that they are "employees" despite the fact that their employer says that technically they are not so because of the terms of their contract, or because they do not have a contract. To change the definition does not necessarily mean to create a need for more policing; it would simply be done on a different basis.
Mr Carrick: Employers will handle the administrative arrangements of the scheme; however, the proposed definition of "worker" would also include self-employed people.
The Chairperson: That is an interesting point. My reading is that the self-employed would not be included within the category of worker unless we specifically added them in.
Mr Carrick: Subcontractors in the construction industry, for example, are regarded as self-employed for National Insurance purposes.
Mr Dallat: You cannot pin too much on National Insurance considerations. I know from personal experience that local councillors, for example, pay National Insurance contributions, but the law clearly states that they do not have the protection that other employees receive.
The Chairperson: That is an interesting example in its own right. It is a revelation to me that councillors are not employees.
Mr Carrick: There would be merit in establishing a consistent definition. There seems to be a difference of emphasis even between the Inland Revenue and National Insurance; the principle of a master and servant relationship applies.
The Chairperson: All definitions create a margin at the edge of uncertainty. I would incline to the definition "worker", which encompasses a broader range of people. I suspect that the law will move in that direction in anyway, so why not try to anticipate those changes? The Northern Ireland Equality Commission has argued that there are definitions of workers in some 1990s legislation.
Mr Carrick: To give another illustration, farmers’ sons and daughters who work at home are regarded as self-employed for National Insurance purposes. Will they be —
Mr Dallat: The two terms are interchangeable. The Transport and General Workers Union uses the term "worker" whereas other unions use the term "employee". However, if the term "worker" is likely to help more people, we should use it.
The Chairperson: If most members feel that we should move to "worker" as opposed to "employee", we will have to decide which categories to include under that definition, such as agency staff, casual workers and home workers. There may be others of which I am not aware.
Mr Carrick: Before considering that issue at our next meeting, is it possible to have some guidance on widening the definition? As Mr Dallat said, there is a lack of information.
The Chairperson: Some of the guidance is available at tab 4a of the information pack, and in particular the answer to question 4: "Is the term "worker" as opposed to "employee" sufficiently robust in employment law?"
The Assembly Research and Library team has listed about half a dozen pieces of legislation from the 1990s that used definitions of "worker". They are photocopied at the back of that section in the Committee’s information pack. There are some differences. We must consider those and mix and match as appropriate. Does the Committee wish to adopt the wider definition, or is it content with "employee"?
Mrs Carson: Were there difficulties with the definition "employee" in the rest of the United Kingdom when the Bill was enacted? What was the reason there for keeping the term "employee" as opposed to "worker"? I am sure that the Bill was equality-proofed in the rest of the United Kingdom. I can see a minefield of work. We would not have the time to pinpoint every category to be included under the new definition.
The Chairperson: It would be difficult. No piece of legislation is ever, in practice, exhaustive, so we could list several categories. In practice, anomalies requiring change will always arise, but obviously we must make as good a job as possible at the time.
There is extensive consultation around the creation of the Employment Act in GB and the consultation here. The Government in London would claim that they had struck a reasonable compromise and balance. Obviously, you can either agree or disagree with that. Various views are being expressed. I am always reluctant to go to a Division, but we may have to do so to get the position crystal clear.
Mr Dallat: Perhaps you should recap for Ms Gildernew, who has just come in.
The Chairperson: We are talking about amendments in principle. The first is the suggestion that instead of using the term "employee", the term "worker" be used, albeit that that would be subject to further definition later in the legislation, which we will discuss in due course. Obviously, there are pros and cons. The proposed definition widens the number of persons who benefit under the Bill. It might be perceived as more equitable in that some of the greyer areas of contractual statement in employment probably have a disproportionate representation of women compared to men. It may involve anticipating changes that will occur anyway in this area of legislation, but, on the negative side, it will cost more money. There will be more burdens on business, and there is ongoing departmental consultation on the definition of employment status with respect to employment rights.
Mr Carrick: The administration of the scheme under the Employment Bill will be at national level, not at regional level. Any change in the fundamentals of the Bill regarding who does and does not qualify will create huge administration problems at national level.
Mrs Carson: At our meeting yesterday, I said that some industrialists are already working towards the United Kingdom system. They reckon that that system will be adopted. They have found problems with it and say that it will be a minefield. If we widen the legislation to include workers, the timeframe here will be longer. However, as the Deputy Chairperson said, we must work with the consensus of the rest of the legislation area.
Ms Gildernew: I am in favour of using the term "worker". The aim is to provide flexible working arrangements for parents. It may be more complicated, it may result in more work for the Committee, and it may cost more; however, we have a duty to ensure that we get the best package for people. Not every worker is necessarily an employee. Because more women fall into the category of worker, we have a social obligation to provide the best legislation. Those who come under the category of "worker" will need these working and leave arrangements most. Therefore, it is important that we get it right, and if that means extra work, so be it. That is not a problem.
Mr Carrick: There are arguments on both sides. I want to know the practicalities and the additional costs involved in widening the definition.
The Chairperson: I anticipated that sort of question and asked the Assembly Research and Library staff to estimate the additional costs. Rough estimates are given at tab 4(a). Question 3 on page 2 of Ms Regan’s paper shows that by rough multiplication it can be calculated that an extra £3 million will be required to set up the scheme, plus £1 million extra in each subsequent year. That was based on the assumption that in the Northern Ireland labour force there are approximately 16% more workers than there are employees — there are some 600,000 employees compared with 700,000 workers, so you multiply up by one-sixth. However, that is a rough calculation, a point that is made in the answer. If anything, the additional costs might be smaller.
Those sums — while not absolute — are small in relation to the size of the Northern Ireland economy, though there may be measurement problems. Before the Committee votes — and I have to work out what form that will take — I would like Mr Gamble to comment on why "employee" was used in the Bill rather than "worker". A range of definitions is included in legislation already in force, so why was "employee" used?
Mr Gamble: Many people, such as part-time workers and people on fixed-term contracts, will be included in the definition "employee". Anyone with a recognised employment relationship will be included. It is a fairly wide term, but the issue of employment status is complicated. People know what an employee is but are not sure of some of the other definitions. Different definitions have been used for different purposes and different legislation.
A study and consultation about employee status and untypical employment arrangements are under way. It was felt that there was so much uncertainty about other forms of working arrangements that it was better to use the term "employee", because most people are familiar with it. We will then consider the findings of the detailed work being carried out to understand the other forms of working arrangement. There is a difficulty in understanding how many other types of arrangement there are and what forms they take.
Ms McWilliams: Statutory legislation provides definitions. Will you address the current pieces of legislation that use the term "worker"? Why was "worker" rather than "employee" used in most statute law from 1995? Is it because the trend in the labour market is changing so rapidly?
Mr Gamble: I do not understand your question.
Ms McWilliams: As shown on page three of tab 4(a), the Employment Rights (Northern Ireland) Order 1996, the Employment Relations (Northern Ireland) Order 1999, Working Time Regulations (Northern Ireland) 1998, the National Minimum Wage Act 1998, the National Minimum Wage Regulations 1999 and the Trade Union and Labour Relations (Northern Ireland) Order 1995 all refer to "worker". It is not the case that it is not in statute and has not been introduced into legislation; it has been. The probable reason for that is that these new pieces of legislation had to take on board the different circumstances under which different people are employed.
Mr Caldwell: It appears that those pieces of legislation directly apply minimum standards, many of which emanate from European level. Those minimum standards would apply to any individual working in any capacity, whereas the Employment Bill’s proposals do not emanate purely from any European Directive. They are new rights that will apply to a range of individuals.
They are not minimum rights that everyone in every type of employment should necessarily enjoy. After all, there is the question of the relationship between employer and employee. It is not a case of an employer imposing rules on employees or of an employee making demands on an employer. It is intended to be an area in which there is mutual agreement. If "employee" were changed to "worker", the intention of the Bill would change massively. The term "worker" would include people whose inclusion in the scheme was not anticipated.
The Chairperson: We must try to decide whether the Committee wants to propose an amendment. This is one of the broader amendments; we may vote on smaller ones later.
Question put, That "employee" be changed to "worker" in the Employment Bill.
The Committee divided: Ayes 5; Noes 4.
Ian Adamson, Esmond Birnie, John Dallat, Michelle Gildernew and Monica McWilliams.
Mervyn Carrick, Joan Carson, David Hilditch and Roger Hutchinson.
Question accordingly agreed to.
The Chairperson: Shall we now discuss the categories that would be included, or do you want to return to that after having had a further paper from Assembly Research and Library Services? If we opt for "worker", we must include some details on the definition — do we include home workers, casual workers, agency workers and so forth?
Mrs Carson: We will have to leave that for someone to research for us. We do not have enough time today to come up with all the categories.
The Chairperson: We will probably return to that next week. In the intermediary time you could look again at Eileen Regan’s paper, particularly question four on pages three and four.
Question four on pages three and four mentions the types of legislation that include the term "worker". At the back are photocopies of the legislation. The definition of "worker" in that legislation will give you a range of the options available. One does not necessarily have to follow them, but a combination may be useful.
Dr Adamson: The age limit that applies to disabled children should be reduced.
The Chairperson: That is a possible amendment. It relates to the right to request flexible working conditions. As it stands, the Bill suggests that parents whose children have not yet reached the age of six have the right to request flexible working conditions. It is a right to request, not a right to such conditions.
The Bill also suggests that where a child is disabled and has not reached the age of 18 the same provision should exist. It could be argued that since this is designed to help parents who have dependent on them young or disabled people, the age limit is not relevant and should be removed. Therefore a younger person who is dependent and disabled, regardless of age, should be included in the provision. If that were the case more parents would be helped, as would the dependants of such parents.
There is an argument against that amendment — the cost. When I first considered this amendment, I felt that it looked reasonable because the numbers involved might be small. However, the latest advice from the Assembly Research and Library Services — and it is difficult to get precise figures — is that there are many disabled people in Northern Ireland. Unfortunately, Ms Regan did not have that data when she wrote the paper at tab 4(a).
The Committee Clerk: It depends on the definition of "dependants" and if they are "younger".
The Chairperson: Surely that is true by definition.
The Committee Clerk: It would be useful to speak to Ms Regan about that.
The Chairperson: How do members feel about that as a possible amendment? Would you like to hear some statistical and contextual background from the researcher about the disabled and the right to request flexible working.
Members indicated assent.
Mr Dallat: There is official and unofficial adoption. The adoption process is long and protracted, and it remains unofficial for a long time. The term is accepted in other parts of law.
The Chairperson: Can any of the officials comment on that? There may be a grey area before an adoption is officially cleared, and the prospective adopters would need help during that period.
Mr Gamble: I do not feel qualified to comment on that.
As departmental officials, our sitting at this table may not serve a purpose. This is a Committee debate, and we will clarify points, where possible, but we seem to be being addressed as if we were giving evidence.
The Chairperson: Yes, I am aware of that. Are you happy to remain in the room, and if there is a technical problem — albeit there is always the problem of how you define technical as opposed to —
Mr Gamble: I am not seeking to be obstructive in any way, but we do not want to be part of the Committee’s debate. The Committee has to make to the Minister submissions about which she will be seeking our advice. We could be compromised if we took part in this debate.
The Chairperson: Would you prefer to be away from the table?
Mr Gamble: I would prefer to be called at your discretion.
The Chairperson: Thank you for your help so far.
Thank you for coming, Ms Regan, and thank you for your paper, which attempts to answer some of the questions that we thought might arise about amendments. We want to discuss the possibility of changing the qualification with respect to parents of disabled children by removing the under-18 age limit. The question therefore arose of how many more parents or families would be affected by such a change, and hence the cost implication. Were you able to get any angle on that?
Ms Regan: The statistics unit in the Research and Library Services provided me with figures. It is difficult to ascertain precise numbers with accuracy. The figures show that there are three different types of statistics that must be looked at to ascertain the potential impact of extending the age limit of disabled dependants beyond 18. They are: disability living allowance (DLA), which is the best allowance for disabled people under 65; attendance allowance, which kicks in for those over 65; and incapacity benefit for the self-employed. The numbers for severe disablement allowance are too small to make any difference to the estimates.
According to the most recently published figures, from May 2002, 145,741 were on DLA and 65,657 were on attendance allowance, making a total of 211,398. That means that one-eighth of the population of Northern Ireland claim one of those financially exclusive benefits. I have been advised that, in estimating the associated costs with disability, it is possible to take into account the statistic that 13,000 under 18-year olds receive DLA. That could be multiplied by a factor of around 16.
We need to know the figure that the Department included in its estimate of the number of employees with disabled children. That could be multiplied by 16 to obtain an estimate of the revised costs. On an estimate, based on the advice of the statistics unit, more than 100,000 potential beneficiaries would result from an expansion to include disabled dependants. If the Committee wishes to have further work done, the statistics unit would be happy to pursue it. Unfortunately, I do not have a background in statistics.
The Chairperson: That would be helpful. Although the position is vague, that information nevertheless indicates that there would be a considerable increase in the numbers affected. My view is that the Committee should probably not consider an amendment at this time. However, if further data to indicate something different became available in the future, we could consider an amendment.
Dr Adamson: I would be happy with that. I was unaware of the figures.
The Chairperson: Are there any other views about disabled flexible working?
Mr Dallat: Did the Equality Commission have any proposed amendments?
The Chairperson: The Equality Commission suggested that the age limit should be removed for disabled children for as long as they are dependants, regardless of whether they are 18, 25 or 35.
Ms Gildernew: I agree with removing the age limit. Those of us with young children know the necessity of flexible working arrangements, but a disabled child relies on a parent for everything. We must seriously consider cost implications, but we really need to try to make a difference. Perhaps it would be worthwhile for the Minister to look for extra resources to ensure that we make the necessary provision to entitle the parents of disabled children to flexible working leave.
Mr Carrick: The clause gives the parents of young children the right to apply for flexible working arrangements. There is a concession for those with disabled children under eighteen years. If there were no age limit on the definition of a disabled child, would that result in an entitlement for life? A disabled child remains the child of a parent for life.
The Chairperson: Yes, if it can be established that a disabled child is dependent. I do not know whether Ms Regan can comment on the definition of dependency. Would the removal of the age limit mean that the parent of a disabled child would qualify automatically, or could the dependency qualification kick in or change? Could a disabled child cease to be dependent? How would that be proven or established?
Ms Regan: It would depend. I understood that, for disabled dependants, the provision would extend beyond children. That was the intention. Arguably it would depend on how it is defined or described. For example, will it be limited to children or will it be extended beyond that? There are other forms of dependence.
The Chairperson: That is also an issue.
Ms McWilliams: This is such a complex issue, going beyond the current age group, that a separate piece of legislation would be needed, or a huge burden would be put on this Bill. This matter is being examined in other areas of legislation such as benefit payments, carers’ allowances et cetera. We may wish to proceed with what has been agreed and at another stage examine it as a piece of legislation. There is a lobby group that suggests that. Currently, it seems that parents of able-bodied and disabled children want the existing age groups. In my experience of disability, the state tends to take over the dependency after that.
The Chairperson: Both views have been expressed, and I sense that most members would not favour such an amendment. Does anyone feel strongly that a Division should be called?
Mr Dallat: Yes.
The Chairperson: You are a political masochist.
Mrs Carson: How does the issue tie in with the equality agenda? The parents of young people doing A levels and going on to further education might feel that they were being discriminated against if there was an age limit. I am acting here as devil’s advocate.
The Chairperson: Are you saying that any age limit for any category is discriminatory?
Mrs Carson: It will be thus if it concerns disabled children and young persons without setting an upper age limit for that group. I agree with Monica McWilliams; it has been examined in other areas, and we should perhaps leave it as it is for now. Someone with 17- or 18-year-old children might want flexible working hours.
The Chairperson: When the issue has been dealt with, I shall invite Members to suggest other amendments. An amendment might possibly be made to that; however, it is up to Members to decide whether they wish to examine the definition of "flexible" for non-disabled children. Should the upper age limit remain at six, or should it be higher?
Mr Dallat: The purpose is to underscore the relevance. This concerns not only disabled children; the family of a disabled child is also disabled. Comparisons must not be made between that situation and that of someone who is studying for A levels. Perhaps it is necessary to be associated with a family to understand the situation.
The Chairperson: That is the counter-argument; however, the Bill as it stands is positively discriminatory or biased towards the parents of disabled children. Most people feel that it is right for the age limit in such cases to be under-18 as opposed to under-six. There is differential treatment, and most people feel that to be appropriate, given Mr Dallat’s argument.
The wording of the question is:
"That flexible working be extended to all working parents of disabled children so long as they are dependants."
Are members happy with that? If the Committee accepts it, the "younger than 18" requirement is removed. A proposer is needed.
Ms McWilliams: I take it that it does not refer to the statistics which Eileen Regan gave earlier and that it is a different category. You initially referred to disability living allowance and incapacity benefit.
Ms Regan: This group is broader.
Ms McWilliams: There are therefore no accurate statistics, and we do not know how many people are affected.
Ms Regan: There are statistics, but those you rely on do not correlate directly with what you seek to do. There is therefore an element of guesswork.
Ms McWilliams: We do not have an accurate record of the number of disabled dependants who are over 18 and still living at home.
The Chairperson: I have a question for the officials. What statistics did the Department have for the number of people who would be affected by a right for parents of disabled children up to the age of 18 to request flexible working hours?
Mr Gamble: The Department conducted a regulatory impact assessment. I do not have it here, and I am not sure whether it had to cover that much detail, since such assessments deal with the costs which will be imposed. As this is an arrangement for flexible working hours, the cost of the measure is in question. I do not recall whether the Department used statistics or whether it simply came to a conclusion following the consultation and the suggestions made in that about the age of disabled and non-disabled children whose parents should be entitled to flexible working hours. A consensus emerged that the appropriate age was six for non-disabled children and 18 for disabled children. The decision was probably not made in a scientific way. People cease to be children after their eighteenth birthday, and the Bill concerns children, parenting and employment.
Ms Gildernew: A 22- or 23-year-old who is wheelchair- bound and cannot fend for him- or herself is, to all intents and purposes, a dependent child. Age does not matter, for such people will not be able to get out of their wheelchairs and fend for themselves at the age of 18. Parents still need flexible working hours. The system is so poor at caring for such young people that many parents have had to give up work altogether to look after their children full-time, and there will be many families to whom the arrangements will not apply, since the parents cannot work. A person of 22 who is dependent on his parents is a child, and age should not be a consideration.
Mr Gamble: That matter is for the Committee to decide. The proposal is what is contained in the Bill.
Mrs Carson: Does Mr Gamble know the legal definition of a child?
Ms McWilliams: A child cannot be left unattended below the age of 14.
The Chairperson: This broader area of discussion is drawing us away from the Bill.
Ms McWilliams: It is a fair question, however.
Mrs Carson: Such people are children in every sense but their age. Their parents think of them as children, but what is the legal definition of a child? Social services state that children cannot be left alone until the age of 14 and that a child must leave a special school at the age of 19, at which point he or she is no longer considered a child.
Ms McWilliams: That is a different matter, since that is the leaving age for disabled children. A parent may be prosecuted for leaving a child unattended under the age of 14.
Mrs Carson: Can we clear the matter up?
The Chairperson: I am not sure how relevant that is to the Employment Bill, although it is an important issue in its own right.
Ms McWilliams: It is relevant because children coming out of school cannot be left as "latchkey kids", as they were once known. That is the reason for asking for flexible working hours. Children cannot be left "home alone" from the end of the school day until the parent gets home from work. Most parents will require flexibility if they do not wish to pay child-minders to look after that age group. Obviously, they are for children below the age of six. The issue is partly about keeping people in the labour market. In the past, when women had children below that age, they tended to give up work completely.
The Chairperson: We are dealing with an issue that could be covered in another amendment, which we may come to in due course. We are finding it difficult to find the right form of words for the question. Is an 18-year-old disabled child legally defined as a child?
Ms Gildernew: It depends on whether the child is dependent. Your child is always your child, even if he is 30. He is considered a child so long as he depends on his parent.
The Chairperson: I appreciate the point in the social and moral sense. However, the problem is that using a different form of words leaves us open to situations in which a dependant is not a child. For example, he could be a nephew or an adopted child.
Ms Gildernew: If they are adopted, they are your children. We are not talking about extended families; we are talking about flexible working hours for parents of children with disabilities who are dependent on them.
The Chairperson: Yes. The issue is whether we can use the word "child" if the person in question is above the age of 16. Is that right?
The Committee Clerk: We could invite the researcher to define children and then discuss the matter further.
Ms Regan: There are several definitions. Does the amendment seek to have a catchment of disabled dependants, or does it focus solely on disabled dependants who are the children of those on whom they depend?
The Chairperson: Yes. That is a good point. Are we considering disabled dependants, which is a broader category than disabled children who are dependent on their parents, or simply disabled children, even though they may not legally be defined as such because they are above the age of 16?
Mr Carrick: Is it not clear that the clause gives parents of young children the right to apply for flexible working hours? Moving outside that area would widen the clause. The parents are the people for whom the clause makes provision.
The Chairperson: We should use that form of words. Should flexible working hours be extended to all working parents of disabled children?
Ms Gildernew: The Equality Commission recommends that a proposed right to request flexible working be extended to parents of disabled children, so long as the children are dependants.
The Chairperson: That sounds like a good form of words.
Mr Carrick: Let me clarify this — when a disabled child reaches the age of 18, another social support system kicks in. Is that right?
Ms McWilliams: Yes. However, if the state takes over, disabled children are not considered dependants of their parents. We know of parents who do not want their children to move into residential or respite homes or whatever accommodation the state offers. It is likely that many parents work shifts — one working days, the other nights — to enable them to care for disabled adult dependants.
Mr Carrick: The key words are "adult dependant". At some point, the child must move from being a child dependant to becoming an adult dependant. That is a critical stage.
Mrs Carson: That happens at the age of 18. Children who attend special schools must move on when they turn 19, as there is no special educational provision for them beyond that age.
The Chairperson: I suggest that we use the same form of words as the Equality Commission. There may be a legal tangle with that, since dependent children are not actually children beyond the age of 18. We should use those words anyway, however. If we agree to the amendment, we shall have to come to terms with that.
Ms McWilliams: Although I use the term "adult dependant", I think that the Equality Commission’s wording would cover that group. The Commission intends that disabled children be considered children as long as they are dependent. That would include people with cerebral palsy who may have the mental age of a child of four but a biological age of 44. Therefore, the definition which the Equal Opportunities Commission has suggested would include all those.
Question put, That flexible working be extended to all working parents of disabled children, so long as they are dependants.
The Committee divided: Ayes 3, Noes 4.
Monica McWilliams, Michelle Gildernew and John Dallat.
The Chairperson, Dr Ian Adamson, Mervyn Carrick and Roger Hutchinson.
Question accordingly negatived.
The Chairperson: Are there any views on other possible amendments? Obviously, we do not have to make amendments if we not wish to. That in itself is a decision which we can take.
Dr Adamson: I am happy enough with the rest of it.
Ms Gildernew: We should consider other recommendations made by the Equality Commission about flexible working rights for parents of children of school age or under and about the rights of workers who have other care responsibilities.
The Chairperson: We shall deal with those separately. Under the provisions of the Bill, parents of children under six would be eligible to request flexible working arrangements. Ms Gildernew, you suggest that it be amended so that parents would be eligible until their children turned 16. That is a slightly grey area — should we specify the age of 16 or the age at which the child leaves school? That secondary issue could be clarified.
Ms Gildernew: A 16-year-old is capable of looking after him- or herself.
The Chairperson: My point is that a 16-year-old could still be at school.
Ms Gildernew: But compulsory schooling lasts only until the pupil is 16.
The Chairperson: The other issue concerns other categories of carers. We sought advice from the Assembly Research and Library Service, and question 5 in section 4(a) of the document asks:
"If the age limit for children was raised from 6 to 16 to allow working parents to request flexible working, how many more people would be affected?"
Under the existing suggested provision, 120,000 employees are affected. It is estimated that there would be an increase of approximately 70% to about 200,000. The costs of the Bill would obviously be increased because of the greater numbers involved.
Mr Carrick: I have reservations about increasing the age limit because of the potential impact on small businesses. We are asking small businesses to embrace new circumstances wherein they must seriously consider a request for flexible working arrangements. The existing provision in the Bill for an age limit of five or six — or 18 for disabled children — will impact upon small businesses and make it difficult for them to accommodate the new arrangements. If the age limit were to be increased to 16, it would place an unbearable burden on them.
Mr Dallat: The counter-argument is that the effects could be measured in other ways. If parents had flexible working arrangements, juvenile vandalism, drug addiction, attacks on small businesses, joyriding and other social problems could well be curtailed and standards of literacy and numeracy could be raised through homework. There are more arguments for raising the age limit than there are against doing so.
Ms Gildernew: Mrs Carson mentioned the case of the local factory which was forced to close because the owners were unable to find employees. If businesses were a little more sympathetic to parents’ needs, there would no recruitment problem. They could employ people to work during school hours and be more flexible about working hours when the children came home from school. The proposals could help small businesses.
Mr Carrick: I wish that I could agree with that theoretical assessment, but it flies in the face of existing evidence. Many parents already stay at home, and yet young people run riot in the street. The new arrangements are not the answer to the problem.
Ms McWilliams: The figures may exaggerate the case. Many employers already offer flexible hours. The figures include those employers, not just those who are new to the idea. We do not know how many parents would be offered flexible working hours for the first time. The Civil Service is a perfect example of employment where flexible working hours currently exist.
The Chairperson: That is true. I do not know if Eileen Regan would want to add to anything in her paper, but all those statistics must be "back of the envelope", since the available data are not that good. Monica McWilliams’s point is correct: some flexibility already exists.
Ms Regan: Personnel in the Statistics Unit would echo the concern about the amount of guesswork involved.
Mr Carrick: Is it not true that many of the flexible working arrangements involve being able to start within the first one or two hours and cease within the last two hours of the working day? Is that not the current trend? That restriction exists, and the practice is not necessarily the answer which the Employment Bill is looking for when seeking to offer parents of young children flexible working hours.
Ms McWilliams: No. It gives that opportunity to others. One advantage of offering flexible hours is that it gives parents the ability to take children to school and to leave work earlier so they need not pay huge childminding costs.
Mr Carrick: My question was whether that was not flexible enough. Are those arrangements — starting in the first two normal working hours and ceasing in the last two hours — flexible enough to address the domestic issue?
Ms McWilliams: There is also job-sharing and part-time working, which could be considered flexible. The whole labour market is moving towards greater flexibility, but under different names. Some are measured in hours, some in categories of jobs.
Question put, That the right to request flexible working be extended to all parents of children under the compulsory school-leaving age.
The Committee divided: Ayes 3, Noes 5.
John Dallat, Michelle Gildernew and Monica McWilliams.
The Chairperson, Mervyn Carrick, Joan Carson, David Hilditch and Roger Hutchinson.
Question accordingly negatived.
The Chairperson: The other area of possible broad amendment, which Michelle Gildernew suggested earlier, was that the right to request flexible working be extended to employees who have other caring responsibilities, for example, for elderly parents.
Ms McWilliams: This is known as an employment Bill for parents. In some instances, you are moving to the issue of grandparents. Are they a category of parents? People may care for someone else’s parents rather than their own. You are talking about carers as opposed to parents. That moves beyond the legislation’s remit.
The Chairperson: Arguably, it does. However, some would say that it does so in a good sense. That is open for us to judge.
Mr Carrick: I should also pose that question. Is it a complement?
The Chairperson: That is a good technical point. Does anyone have any other comments on that? I did not seek statistical advice on the point, but I imagine the answer would once again be that we do not know the precise numbers involved, but that they would be considerable. It is difficult to be exact. Our understanding is that legislation on caring responsibilities other than for parents and children may be forthcoming. Can the officials tell the Committee whether such legislation is pending?
Mr Gamble: I am not aware of any such legislation coming from my Department.
Mr Caldwell: The Department of Employment and Learning is not working on it. However, the Bill is really about working parents — it stems from consultation on work and parenting.
The Chairperson: The Committee must decide whether to try to squeeze the provision into this Bill or propose separate legislation. Members and Committees can sponsor any legislation they wish, although they would be hard pressed to find time to do so at present.
Ms McWilliams: In addition to what the Committee has heard about work/life balance, the explanatory and financial memorandum says that the Bill was intended to facilitate a balance between "family and work commitments". However, the legislation facilitates a balance between "parenting and work commitments". Had the Bill used the wider term of family commitments, the issue of looking after elderly relatives could have been included. That is a real issue, because the longer people live, the more the working population will have to take on caring responsibilities. Unfortunately, it goes beyond the remit of the legislation.
The Chairperson: Does the Committee wish to put the question about other carers to a Division, or are there members who feel strongly that this Bill is not the place for such provisions?
Ms Gildernew: It should be addressed. I am happy to accept that the Bill is about parents, but the Committee should examine the issue next term.
The Chairperson: The Committee will leave that amendment out but bear in mind that it is a significant area for future legislation. Are there any further possible amendments?
Ms McWilliams: Did the Federation of Small Businesses propose any definitive amendments? I noticed one about the number of employees.
The Chairperson: Everything is in the pack under tab 4(c). The Federation of Small Businesses did not specify amendments; it said that no distinction is drawn between large and small companies. However, it suggests a specific amendment for clause 112(f) on flexible working and mentions that the self-employed are not covered, which is true.
Rather than providing worded amendments, the federation has laid down broad principles, and you can take its comments on board if you wish. Ideally, they would like some sort of amendment saying that the provisions relating to matters such as employment and parenting rights should apply only to companies employing more than 50 workers, for example, and a size band would have to be exempted.
There are several arguments against doing that. It would increase the complexity of the Bill, and you would be open to the argument that you have created inequity for two employees in similar circumstances. For example, an employee in a company with 24 workers would not get the right while another in a company employing 26 would. The parity with Great Britain would be broken with respect to the way in which the Inland Revenue system works in this area. Nevertheless, there is an argument about the burden on small-and medium-sized enterprises, and that should be taken seriously.
Ms McWilliams: In the light of the amendments which we have proposed, I have a question inspired by an issue raised by Jones and Cassidy Solicitors in relation to their expert knowledge of anti-discrimination law. Are there categories which suggest that the Bill be left as it is, now that we have eliminated some categories covered by anti-discrimination law?
The Chairperson: Are you talking about the Bill as it stands?
Ms McWilliams: I am including our amendments. To ensure compliance with anti-discrimination provisions, they are saying that employers are required to consider all requests by employees for flexible working based on balancing work and domestic responsibilities. We have considered the matter as far as we could in the light of parental responsibilities. Discrimination law goes beyond that.
The Chairperson: That is between those with dependants and those without dependants under section 75 of the Northern Ireland Act 1998.
Ms McWilliams: That is right. Has anybody examined the question regarding the equality impact?
The Chairperson: I am sure that we asked the officials a similar question when they gave evidence, but not in the way in which it has been couched. How far has the Department considered that, and is the Department confident that the Bill, as it stands, is not vulnerable to some sort of challenge on equality grounds under any of the categories listed in section 75? Did the equality impact assessment produce a convincing result that there were not differential impacts which would be vulnerable to challenge? Sometimes differential impact is allowed if it corrects a perceived or actual imbalance.
Mr Gamble: The equality impact assessment found that the Bill would have no adverse effect on any group.
Mr Caldwell: An assurance has been received that the Bill, as drafted, is in compliance with the Human Rights Act 1998.
The Chairperson: Ms McWilliams referred to the title of the Employment Bill, and we asked the officials about that. There are good reasons for keeping it short, and the tradition is to do so. However, if members have had further thoughts about the matter, can we amend the title?
Ms McWilliams: We can; it has been done in another Committee and accepted by the Department.
The Chairperson: Members may feel that there could be a better description for the Bill.
Ms McWilliams: I proposed the title in question, as it would be good to have short titles for our Bills. Many Bills were being introduced as No. 1, No. 2, No. 3 and No. 4, and that was a bland description of the important work contained in them. The Department of Health, Social Services and Public Safety accepted a different title and named a Bill descriptively. The custom and practice is that the title must be fewer than nine words. We should not need many words to describe what this Bill will do.
The Chairperson: It might prove quite awkward to find an exhaustive form of words. We could have "Parents and Adopters". Do members have any proposals for the title?
Ms Gildernew: What about "Flexible Working Arrangements for Parents"? An adopter is a parent when he or she adopts.
The Chairperson: "Flexible Working Arrangements for Parents".
Ms McWilliams: That title only describes the descriptor. The long title describes what the Bill will do. It could be the "Work/Life Balance Bill" or anything that shows that it is interesting.
The Chairperson: Yes. It would show what the Bill delivers.
Mr Dallat: It could be "Parents and Guardians".
The Chairperson: We have several alternatives: "Flexible Working Arrangements for Parents" or "Work/Life Balance".
Ms McWilliams: The Bill deals with more than just flexible work, and that is the difficulty with "Flexible Working Arrangements for Parents". It includes adoption leave and extends parental rights in employment. Perhaps we might leave the decision on the title until next week, as it is difficult to come to one now. If we all gave some thought to it, we could come up with a few interesting alternatives to the present two words.
The Chairperson: "Work/Life Balance" has been suggested. We should always check an acronym — WLBA — in case it stands for something threatening or obscene.
Are there any other suggestions or possible amendments?
Mr R Hutchinson: You have given everyone enough time, Mr Chairman.
The Chairperson: That is what I had hoped for. I shall wrap up this section of the meeting.
We have agreed the broad principle of an amendment, changing the term "employee" to "worker". Ms Regan’s letter of 4 September to the Committee is relevant to the Equality Commission’s evidence. The Equality Commission suggested that we use the definition of "worker", as in the Employment Rights (Northern Ireland) Order 1996. We should need to ask it directly, but I wonder why it went for that definition as opposed to the one used in the Employment Relations (Northern Ireland) Order 1999, which seemed to have a broader scope. Perhaps only the commission can answer that question.
Secondly, if we use the word "worker", as opposed to "employee", what categories might we want to include in the definition? Thirdly, it struck me that the definition of "worker" does not include those who are self-employed. Is there any reason for that, and is there anything positive or negative which the Committee must consider before including the self-employed in the definition? Perhaps those are difficult questions to answer at short notice, but the Committee will probably make that amendment and ask the Department for more research on the matter. Other members may have questions too.
Ms Regan: It would be helpful if the Commission could explain its rationale for using the definition from the Employment Rights (Northern Ireland) Order 1996. I imagine that it concerns the scope of the legislation. In relation to the question about who is included in the definition of "worker", the Committee may have certain groups in mind.
The Chairperson: For example, what groups are included in the legislation passed in the 1990s?
Ms Regan: Agency workers and freelancers might be included under a specific definition. The Committee might want to extend the scope of the definition. I have itemised some groups of workers in my written response, including home workers. It may be worthwhile to make more comprehensive comparisons with that last group so that I can spell out some groupings and their extent.
As for including the self-employed, the Committee might want to engage further research, for employment law is a minefield in certain ways, and including them might require a broader definition.
The Chairperson: I am asking you to speculate, but is that why the self-employed have historically been left out? Is it so difficult to define "employees" and "workers" that the law has not reached the point of including the self-employed, or is there another reason?
Ms Regan: It is pure speculation on my part, but I imagine that self-employed people are defined as different from freelancers. However, I would need to research the difference.
The Chairperson: Thank you. As there are no more questions about the legal aspects of that matter, we shall move on. We shall defer the clause-by-clause consideration of the Bill until next week. As the Committee agrees in principle to using the term "worker" instead of "employee", we must go through the Bill and identify the clauses which must be altered. The Committee will also seek the further research which Ms Regan mentioned. As there are no further comments, I should like the thank Mr Gamble and Mr Caldwell for coming to the meeting and Ms Regan and the Assembly researchers for their help.
There is one question about how the Committee should proceed. The two possible amendments which we are discussing are notably the change from "employee" to "worker" and, possibly, the title of the Bill. Do members feel that the Deputy Chairperson and I should seek a meeting with the Minister at a reasonably early stage to make her and the Department aware of the Committee’s thinking? The Minister might agree to amend the Bill as she did with the last Bill about the name change of the Department.
Members indicated assent.