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Committee for Employment and Learning
Thursday 20 June 2002
MINUTES OF EVIDENCE
Dr Birnie (Chairperson)
Mr B Gourley ) Northern Ireland Irish
The Chairperson: I welcome Mr Gourley, Ms Hope and Mr McBrinn from the Northern Ireland Committee of the Irish Congress of Trade Unions and thank them for their written evidence. They will now give a short presentation.
Mr Gourley: I thank the Committee for the opportunity to present evidence on the Employment Bill. We are disappointed that much of the Bill will be passed through Westminster. We deal only with family-friendly policies, which, through no fault of the Committee's, is outside its remit.
Ms Hope: I, too, welcome the opportunity to make a presentation to the Committee. The progress in work-life balance issues, particularly improvements to maternity and parental leave rights, has been one of our key objectives for a long time. We represent some 220,000 workers in Northern Ireland, the majority of whom are parents and more than half of whom are female, so, for a long time, we have had input into those issues on behalf of all our affiliates. Many of our members have been adoptive parents, so we have worked on adoption issues also. In the past, no leave provision was made for adoptive parents, and it was not recognised that they needed time with a child, especially when they adopted older children rather than babies.
We welcome all the advancements in the Employment Bill, but we have concerns about it. First, we question the definition of "employees" and the application of the legislation only to those so termed. We have always argued that all family-friendly rights should apply to workers, not just employees. "Employee" is a narrow definition of someone in the workforce; the broader term "worker" refers to someone with an employment contract or an employment relationship, thus covering both forms of employment.
The narrower definition excludes the self-employed; temporary workers; casual workers; and agency staff. Given the growth in numbers of such workers in Northern Ireland, especially among women, many people will be left outside the loop. That will leave an unacceptable gap in the extension of rights afforded by the Bill, so the matter must be considered seriously. We urge that the definition of "employee" be amended.
We welcome the provisions to simplify maternity pay and leave, but the effective enforcement of maternity rights legislation, including the operation of sex discrimination law and health and safety rights, must be examined. While the response to 'Work and Parents: Competitiveness and Choice' was delivered by several organisations in GB, the Citizen's Advice Bureau carried out research, particularly on the health and safety of pregnant women. We must consider health and enforcement issues. The Equality Commission, when it appears before the Committee, will point out that one of the highest categories of complaints that it receives is from women who have been discriminated against while pregnant. That issue has not been dealt with at all.
We welcome the extension of maternity leave from 18 to 26 weeks, which applies only to mothers who fulfil the qualifying conditions. We welcome also the proposed simplification of qualifying conditions and notification periods and the proposed reduction of the sickness trigger from six to four weeks. Overall, the proposed new framework will probably be simpler and more manageable for employers and employees; however, the number of women who benefit from longer periods of maternity leave will not increase significantly.
The Bill does not address many issues raised in our response to 'Work and Parents: Competitiveness and Choice'. For example, to extend maternity leave that is paid at a low flat rate, and to extend unpaid additional maternity leave, will benefit only the small percentage of women who can afford to take time off. When the Bill was debated at Committee Stage on June 5, the Minister mentioned the Department's commitment to social inclusion. Unless maternity pay actually replaces earnings, few women will be able to take extended leave. Only those with a sufficient income will be able to do so; therefore TSN requirements will not be addressed.
We regret that the provision to restrict earnings- related statutory maternity pay to the first six weeks of maternity leave will continue to apply, despite many groups' arguments against it. Women will take the longer period of leave to which they are entitled only if the period for which earnings-related statutory maternity pay is extended. We argued for the extension of that period, because many women need extra time to adjust to motherhood, to find adequate childcare and to ensure that their child is settled before they return to work.
If we want to retain women in the workforce, we must find a way to do so; otherwise, the reasons for giving paid leave in the first place will have been negated. In addition, it is costly for employers to recruit and retrain staff that are needed when women do not return to work after a short period of maternity leave. Although we would welcome an increase in the period for which statutory maternity pay is available, maternity pay is quite low. We argue for earnings replacement maternity pay. That is an area in which limited universalism is fully justified in the interests of the health and welfare of all working women and their babies and to protect their labour market participation.
We are disappointed that provisions, particularly those relating to additional maternity leave, still have a qualifying service condition. The existing service requirement for statutory maternity pay in itself is inherently discriminatory against women who change jobs in the early stages of pregnancy. The requirement of a service qualification means that, if a woman changes jobs when she is one or two months pregnant, she will be unable to access statutory maternity pay. Those qualifying conditions inhibit women's job mobility and, potentially, their career advancement, as changing jobs while pregnant can mean a loss of statutory or contractual maternity benefits.
In our response to the Green Paper, we suggested that the Government consider an integrated maternity and parental leave scheme that would afford the same protection as current maternity leave. It would be equally and individually available to both parents as a possible alternative to extended unpaid maternity leave. It would also encourage more fathers to spend time with their children. Unless it is financially possible, many fathers do not spend as much time with their children as they would like. Working life in Northern Ireland is such that fathers usually earn more than mothers; therefore mothers will usually take the time off.
The chance to radically change the current system was lost in the 'Work and Parents: Competitiveness and Choice' Green Paper. It only tinkered with it, adding bits here and there, but it did not address pay issues, length of leave and so on. Until that happens, many women and men will still be outside the loop.
We welcome the reduction of the sickness trigger from six weeks to four weeks before the expected date of childbirth; however, the provision that an employer can trigger a woman's maternity leave should be abolished or redrafted so that its application is limited clearly to sickness. It should also allow an employer to expressly agree that the sickness trigger would not apply. We will address that issue more thoroughly when proposing amendments.
We welcome the proposed new right to paternity leave. That provision should have been drafted to include people in close contact with a mother and baby at the time of the birth, including her mother, father or other adults who provide support. The right to leave should not be linked to an artificial legal concept of parental responsibility. A broader provision would cover single parents and young women, whose mothers may support them at the time of birth if they do not have a partner to do so. If that concept were narrowly legally restricted to fathers, many people would not be able to avail of support. A broader provision would enable a mother's family member to take time off to provide support for two weeks, which is a short period.
There would be no reason to impose a service qualification requirement on paternity leave, which is only two weeks' leave. Ordinary maternity leave creates no such requirement, so it should not be imposed in respect of paternity leave. It is reasonable that those who wish to access paternity leave should take it within two months of the birth; however, we cannot accept the argument for making it so inflexible that it has to be taken in one block. It helps employers if leave is taken on a one-day or part-time basis, as the needs of the child and parents and employers must be considered.
It should be possible to have a scheme for low-paid fathers, such as maternity allowance, which kicks in when a woman's salary is not above the lower earnings level and she cannot access statutory maternity pay. Many fathers may not be able to access paternity pay because they do not earn above the lower earnings limit. There should be a scheme, similar to maternity allowance, for fathers or other carers whose salaries are below the lower earnings limit or who are self-employed.
As far as we know, the draft provisions in the framework have not yet been formalised. How will the Department provide for birth support leave rights to be extended to same-sex partners? The apparent intention of the legislation is to require the acquisition of legal parental responsibility. The use of parental responsibility as a criterion for eligibility discriminates against non- biological carers, who may have difficulty in establishing parental responsibility through, for example, joint residence orders, or who do not know their rights under family law. To an extent, the extension of rights on the basis of biological parenting can disadvantage the children of single parents. It is not clear whether requiring the acquisition of parental responsibility in that context would constitute justifiable discrimination under the recent Employment Framework Directive, which is designed to protect against discrimination on the grounds of sexual orientation. A Directive to deal specifically with sexual orientation will be created, so there would be no sense in amending current legislation.
We are happy that inter-country adoptions will be covered in the Bill. The Minister said that there would be slight differences, but she has not elaborated on what those would be. We would like to know what those differences are, because we cannot see why, if someone adopts a child from a country outside Northern Ireland, his or her entitlement to the legal provision in the Bill should be reduced.
We welcome the recognition and support for the role of adoptive parents in the granting of leave provisions. There are good arguments for making the main carer in an adoption situation eligible for early replacement or adoption pay in order to encourage parents to adopt. The main carer is normally a woman, who usually maintains her participation in the labour market. As with paternity leave, we do not see why a service qualification requirement for leave should be imposed on either the main carer or a partner.
As regards the legal requirement of notification, an employee normally has to give up to 28 weeks' notice that she intends to access all the leave rights. Most employees receive only a week's or a month's notice that they will be dismissed. We do not understand why people have to give long periods of notice to employers before they can access leave rights - the requirement should be reduced.
It is not clear how leave eligibility for adoptive parents would be framed, because the current law requires joint adopters to be married, although it allows single people to adopt. It would be fair and helpful if the UK Government were to give non-married partners the right to jointly adopt, perhaps through the draft Adoption and Children Bill. In any event, the non-married partners of those who adopt should not be denied the possibility of leave and should not be required, as a condition of eligibility, to gain parental responsibility through a residence order. However, all adoptive carers, whether or not they are legally recognised in family law as an adopting parent, should, as a main carer, be given the same rights as granted under paternity leave. We urge the introduction of an allowance scheme for adopters who earn below the lower earnings limit as part of the current maternity allowance system. That would reduce the costs of adoption leave.
Another issue is flexibility. People in the UK work the longest hours in Europe: 43.6 hours a week compared to 38.4 hours a week in Belgium. Greek people work the second longest hours: 40.8 hours a week. Despite the European Working Time Directive, more than four million employees in the UK regularly work more than 48 hours a week, and almost half of the country's employees have no flexible working arrangements.
We welcome the provisions that give employees the right to request flexible working arrangements. However, we disagree that six years old should be the cut-off age after which parents have no absolute right to request flexible working hours, though the cut-off increases to 18 years old for those who have a child with disabilities. The key issue should be the needs of the child and the family, and not an artificial age barrier.
We welcome the fact that the state will cover up to 100% of the costs of providing parental leave and enhanced maternity leave for small businesses in Northern Ireland, while up to 92% of larger firms' costs will be covered. We do not wish to burden employers, but we want rights to be extended to the workforce, especially parents, because they are responsible for preparing the next generation of workers. Although we welcome the provision, the rights extend only to maternity, adoption and parental leave. Many of us, including myself, have been arguing for those rights for many years, although I no longer need them. We are now moving into the realm where one must consider the care of elderly parents and relatives. There is no provision for those who care for elderly parents, and we have an ageing population. We will continue, in congress, to push for an extension to that legislation or for new legislation, so that people who care for elderly parents are recognised.
Again, carers are mostly women, many of whom must leave the workforce. In many cases, that reduces their entitlement to a full state pension or an adequate state pension, if there is such a thing these days. As a result, they rely on the state in their old age. Many will live in poverty and will have to access benefits that they would not have had to seek if their position as a carer had been recognised. Those are our main points; thank you for giving us the time to present them to you.
Mr Hilditch: You mentioned discrimination, particularly with regard to flexible working hours. Do you consider that the proposed legislation will give the right to flexible working hours to some people with caring responsibilities, but not to others? You mentioned people who care for the elderly, but what about disabled children who are over 18 years old? Would you regard that as blatant discrimination?
Ms Hope: We are not happy with cut-off points that seem to have been plucked out of the air; for example, all of a sudden, at six years old a child is not deemed to need a parent around, or it is implied that disabled children, on reaching 18-years-old, can fend for themselves. However, we recognise why those barriers, as we call them, exist. The main factors are cost and the attempt to find a dividing line. We will be examining the forthcoming age legislation, which may impact on law that comprises age limits. However, children with disabilities, especially those who are severely disabled, should receive care for as long as they need it. If that means enabling parents to access flexible working arrangements, that should be done. I hope that the Committee will consider that in its discussions.
Mr Hilditch: As regards the cut-off age and whether you are arguing a case for social inclusion, on what grounds would an employee be able to claim that the needs of a child or a family justify flexible working arrangements?
Ms Hope: Do you mean in the first place, or at any age?
Mr Hilditch: At any age, but particularly younger children.
Ms Hope: There is a duty on the employee to give the employer reasons why that arrangement would not have an adverse impact on the business. A good deal of responsibility is put on the employee to try to access that right. An employee could make such a request for any reason, for example, a wish to spend more time with one's children, which is highly commendable; childcare difficulties; or a child with a long-term illness.
Sometimes I worry that the system is tied too closely to caring responsibilities. In the broader work-life balance scheme, in which the Department for Education and Learning is very involved - I sit on the ministerial advisory committee - a move is being made to reconcile work and family commitments and to allow people to work more flexibly so that they can pursue other interests. We must take account of that - work should not be only about the times that an employee is present, it should focus on staff's contribution when they are there.
Mr Carrick: It is interesting to reflect upon the emphasis of last week's evidence from the Federation of Small Businesses, and the emphasis of your presentation. The work-life balance ideal has costs attached. Should those costs be carried by small businesses and their proprietors, who form the backbone of the Northern Ireland economy?
Ms Hope: We do not want to place burdens on the employer. Sometimes, what they regard as burdens are actually our members' rights. However, I appreciate your point, and I will answer your question.
We have heard the argument that financial constraints or burdens were placed on employers when we introduced the sex discrimination legislation, the equal pay legislation, and the minimum wage legislation. Records show that the reason any Northern Ireland employers have to downsize or close is not that they have paid an employee maternity leave or childcare allowance. Nortel is not shedding 200 workers because it has a problem with paying parental leave. We do not want the issue to be seen in that light.
You are correct to say that there must be a partnership arrangement, and the Government have a responsibility to ensure that legislation that extends rights to employees does not have an adverse impact on employers. That is why we will continue to welcome the fact that employers, especially small businesses, who are the backbone of the economy in Northern Ireland, can access 100% of the additional statutory maternity pay, and the new parental leave.
In partnership with employers, we have been putting in place flexible working arrangements that suit both the employer and the employee. There are costs, but the advantages are in the retention of staff, because every time a new employee is recruited the cost is approximately £3,500.
If employees do not have to take sick leave due to stress or to care for children, the knock-on effects will be positive. I urge that we start monitoring the take-up of unpaid parental leave, paternity leave and longer maternity leave arrangements before considering the costs. We will not know what the costs will be until the system is in place. People worried about the costs of introducing the statutory minimum wage, but those have been minimal.
Mr Carrick: Last week we heard about administrative costs and that smaller employers will receive a 100% rebate. The percentage on the national insurance is a paltry compensation.
We also heard that lack of notice disrupts and dislocates business and frustrates forward planning. Today you put forward the argument that notice is necessary. The Federation of Small Businesses said that to have meaningful forward planning and recognised business structures, particularly with key personnel, an employer needs advance notice of events, so that the necessary arrangements can be made for cover. There are additional costs in training staff to provide temporary cover, particularly for key posts. Therefore there are administrative costs on top of the PAYE scheme, with student loan repayments, statutory maternity pay, statutory sick pay and tax credits.
The situation is beginning to snowball, and you are correct that the Government must recognise that there is a partnership. However, in Northern Ireland we must be careful that we do not impose the straw that breaks the camel's back with undue demands on the administrative capability and capacity of our small employers section.
Ms Hope: We are not saying that there should not be notification. However, some employers require lengthy notification, which can mean that if an emergency or a crisis arises an employee cannot access leave, because 28 weeks' notification has to be given. There is no uniformity in the notification period for receiving benefits. I appreciate the argument, but a great deal of that is to do with one-off set-up costs. Most of us work on IT systems, to which we have simply added a few extra columns. Much of the expense would result from set-up costs. Each year in Northern Ireland, about 12,000 fathers access parental leave. That is not a huge number of people, given the size of the workforce here. It is not beyond employers to create a system that will allow for parental leave. When planning ahead, all employers and companies should build in a degree of flexibility to allow for women taking maternity leave, sickness or people leaving. This is not new. A company that has not built such flexibility into its forward planning has problems anyway.
Mr Carrick: In a competitive world, smaller businesses with fewer than 10 employees cannot afford the luxury of carrying the equivalent of one and a half employees to cover any eventuality. It does not work that way in the real world.
Ms Hope: People who adopt children form a very small percentage of the workforce, so the number of people taking adoptive leave would be very low. The average number of children in a family is now two - few women have three children. Companies do not face the situation of lots of women taking maternity leave year after year, or of many of their staff being on maternity leave at the same time. That is particularly true of small employers. Larger companies are flexible enough to allow for maternity leave, and must do so. We are not trying to burden employers; we are trying to ensure that our members receive their rights.
Mr Carrick: I would love to come back on that, but I must let others speak.
Mr R Hutchinson: Mervyn Carrick rightly stated that small businesses are the backbone of Northern Ireland and that many families depend on them. I am neither for nor against flexible working arrangements, although it is annoying if you are trying to contact someone on a Friday afternoon and they have gone home. They would tell you that they were in work until 8.00 pm on Thursday night, but that is not much good if the phones are switched off at 5.00 pm on Friday and you cannot speak to them. Flexible working arrangements still need to be tweaked here and there.
Are there ways in which the proposed legislation dealing with flexible working arrangements could be amended to enhance its contribution to small businesses?
Ms Hope: At the moment, the legislation does not place an obligation on an employer to always agree to flexible working. If the employer can demonstrate that the flexibility that the employee has asked for would be detrimental to the business, the employer is not obliged to grant it. Flexible working hours are not a right. For example, an employee cannot simply state that they will be working certain hours next week. We will be encouraging our members who want to access the flexible arrangements provided for in the new Bill to do so through negotiation with the employer to establish the best way to arrange those. There are safeguards in the Bill to protect very small employers, for whom it may not be possible to agree to the flexible arrangements that their employees want. However, there is no reason why they should not try to reach a compromise.
Mr R Hutchinson: Do you admit that there are circumstances where such arrangements would not be possible?
Ms Hope: There may be circumstances where that is not possible, and no one would try to impose flexible working arrangements on any firm. For example, if there are only three people in a workplace, it may be difficult for an employer to allow the sort of flexibility that each of them wants, but it may be possible to reach a compromise that would allow for some flexibility. I do not know whether my colleagues have any examples of flexible working that they could use as illustrations.
Mr McBrinn: The small-business economy in Northern Ireland must be considered. Analysis of the economic sector in which small businesses operate shows clearly that the number of employees in each company is small and, therefore, that will impact on any decisions taken about flexible working hours or family-friendly policies. Any decision by the trade union movement not to recognise that would be irresponsible. Ms Hope's point about the flexibility opportunity is correct. There must be a shared and responsible approach to dealing with these issues.
Mr Carrick mentioned the partnership issue. Although Northern Ireland does not have a social partnership, such as those in other developing European countries, there is a desire to ensure that we understand the position in which employers in that category find themselves.
As Committee members will know, people are sometimes reluctant to accept academic research. A team at Cambridge University has completed a survey on workplace employee relations, dealing with staff and management. In the areas that we have looked at, the survey found that those companies that offered parental leave beyond the minimum legal standards experienced an above average improvement in production because of staff retention. If there was an opportunity to encourage parents by, for example, allowing them to work during term time, it was reflected in the creation of a better position for the firm's product or service. There was a clear distinction between poor and improving practice. Flexible working hours and job-sharing arrangements have been mentioned. The survey confirmed that those measures are associated with lower staff movement and, therefore, lower staff costs. There is a health warning with all surveys, but it found that nine out of the 10 establishments with some experience of flexible working arrangements considered them to be cost-effective.
Mr R Hutchinson: What size are the companies that were surveyed? I am sure that they are not small businesses, employing five, six or seven people. The Committee took evidence from another organisation last week, and I get the distinct impression that if the proposals are forced through, several small businesses in Northern Ireland will say that they have had enough and are not prepared to shoulder the burden any longer. I have never been a member of a trade union. I have deliberately stayed clear of them. The view that every employer is out to get their pound of flesh from every employee has long since gone out the window. There are many good employers who are willing to work with their staff and seek to give them what is rightfully theirs. I feel that some of the legislation could push decent employers over the edge.
Mr Gourley: The reference to a pound of flesh was not in our submissions. I do not think that women will get pregnant just because of the payment legislation. NIC-ICTU has stated that if small employers run into difficulties, it is happy to discuss their problems with them. People who work in small businesses understand the potential problems, and they must be given credit for that. People employed by family businesses know that they will be treated fairly in relation to, for example, maternity leave. They know that their employer will not stitch them up. Those people become more responsible and loyal to their employers and do not take time off every Monday because of hangovers. They become integral to the businesses, and they are conscious of the fact that they are in small businesses, which provide them with their jobs and livelihoods. People in Northern Ireland tend to work together.
The minimum wage did not cripple those whom Bill Jeffrey said it would, nor did it close all the small businesses. We heard from the rooftops that the minimum wage would put many people out of work. That just did not happen. It will not happen under this proposed legislation either.
People in small businesses are responsible people. They realise that it is their job and their livelihood; they are not going to listen to me telling them not to worry about their job. Incidentally, that is not our attitude. We are trying to protect jobs. We are very much involved in the economy, especially in Northern Ireland because that is where we come from. There are many plusses, which are of more benefit than the negative argument of "We just cannot do it". That is all we are saying. We understand that small businesses have the right to argue their corner, and they are right to be worried. There is just as much in this for small businesses as there is for everybody involved. The proposals are the best way forward.
Ms Hope: The Irish Congress of Trade Unions belongs to Opportunity Now, which is the Business in the Community-led organisation that has been putting equal opportunities policies on many of these issues into the workplace for a long time. Over the years, in many workplaces, we have negotiated parental leave - both maternity and paternity leave - policies with pay. The legislation did not address that. In many workplaces, you will find that the maternity leave and pay agreements are more generous than the statutory ones. That has been an accepted part of trying to retain employees and to recognise the service that they give. We would see those as minimum rights and where possible, we hope to better them.
Unfortunately, it is not the good employers that we have to worry about. Those who are not members of Opportunity Now or who have no union organisation get away with blue murder. They are the reason why much of this legislation is brought in - to protect those who have absolutely no other protection.
Mr Dallat: I have to keep reminding myself that this is the Committee for Employment and Learning and not a sub-branch of the Confederation of British Industry.
Mr R Hutchinson: Why does he always have to get personal?
Mr Dallat: If you interrupt me again, I will walk out.
Mr R Hutchinson: Well, go.
Mr Dallat: You did that last week; you are not doing it again.
Ms Hope, you mentioned carers in particular. They are on many people's minds because last week was Carers' Week. From that, we know that people who have no protection save the Government about £452 million a year, which is marginally less that the entire budget for the Health Service. Are there missed opportunities in the Bill to protect the rights of those people?
Ms Hope: They are not addressed at all. The legislation arose out of a consultative document called 'Work and Parents: Competitiveness and Choice'. It considered parents, as opposed to carers in the broader sense. We do need to address the issue of carers.
Mr Dallat: I would have thought so. We must be mindful of the inequalities that currently exist. You made special reference to children with a disability. Everyone knows that in every town across Northern Ireland there are a considerable number of children with varying disabilities, some terminal. The higher up the scale that you go, the greater is the likelihood that you will get time off, particularly if the child is not going to survive. Is there anything in the Bill that is going to give any comfort to parents of disabled children or those in the second group? Will improvements be made to protect the rights of those people? A child with a disability is not a child in itself; it is a family. You cannot separate the child from the parents who are the workers.
Ms Hope: That is an issue that has to be addressed, perhaps also through the disability discrimination legislation. You are right; there is little in this legislation.
Requests for flexible working can be extended for parents of disabled children up to the age of 18. However, there is no provision that if you adopt a disabled child, you will get additional leave. That may be a time when both parents would need to be with the child, but it is not mentioned at all.
It is only when legislation comes through and is implemented that you start to see the gap. That is why we must, unfortunately, keep returning to create more pieces of legislation. We must consider the particular needs of children with disabilities and the needs of the parents who must look after them. I would suggest that you might wish to speak to representatives of the disability rights groups, particularly Monica Wilson, who would probably have some information. We must keep in mind that an equality impact assessment now has to be carried out on all our legislation. That covers nine grounds in Northern Ireland, including disability and dependants. We have to see if there is any adverse impact, and that may raise issues about children with disabilities.
Mr Dallat: I am not ignoring the men, but last week's panel of witnesses was all male. I am just balancing that. There was much chat today about small businesses, given last week's evidence. Without wanting to sound prejudiced in any way, are there a number of large businesses - and I must be careful not to name them - that are still going to escape the requirements of this new Employment Bill in how, for example, they recruit workers part-time, just employing them at the busy times when the tills are rattling? I am basing this on my own observations; I see young mothers working unsocial hours in large supermarkets. How are workers protected in that environment?
Ms Hope: That is about flexible working arrangements that suit employers, as opposed to those that suit employees. Sadly, several years ago, many of those protections in law covering not only the types of work but the hours that particular categories of workers - women and young people - worked were wiped out in the interests of equality. The issue is not that young mothers or "young anybody" work what people consider unsocial hours, if it is their choice and they are able to do it, but ensuring that their employer pays them at least the minimum wage and gives them good terms and conditions.
I realise that many have a constrained choice - it may be because there is a lack of childcare. Young mothers may work in the evenings when perhaps someone else is at home to look after the children. There are many reasons why people choose to work in the ways that they do. Much of this Bill is needed because there is a constrained choice; it is the only work that they have. They need the money. We cannot stop people applying for the jobs; we can only try to protect them in whatever jobs they have. Bob Gourley and Liam McBrinn organise workers in those particular circumstances.
Mr Dallat: How can you prevent those employers choosing students or other people where they do not run the risk of maternity or paternity leave et cetera?
Ms Hope: One cannot.
Mr McBrinn: There are two points; the first is about the larger companies skipping their responsibilities. If it were shown that the legislation is not strong enough and that large companies are escaping their responsibilities deliberately, it would put to bed the argument that this is about resources. The larger companies would have the resources to adopt and direct towards these methods whereas the smaller companies clearly may not have those resources. We would like to come back at some stage and make that observation more solid than it currently is.
Our current experience in both the private and public sectors is that where we have collective agreements on terms and conditions with large companies, they do meet their requirements. Where they do not, we have structures and procedures for correcting that. We do not have the same procedures in the smaller companies, because they are less organised by trade unions simply because of their size. We would want to ensure, and give a clear undertaking to the Committee, that, where the trade unions determine that resources are not the argument, the failings by large companies will be addressed progressively and in a mature way.
With regard to the flexible working arrangements that apply in larger companies, we are again back to the point about having the resources and manpower to make that happen. I return to the point that I made about the Federation of Small Businesses: whether in the public sector or the private sector, we will have to ensure that trade unions meet the requirements of the employees, employers and trade union members when dealing with small businesses to ensure that each one of us has a contribution to make in securing the realisation of the legislation.
Mr Dallat: You are not happy with the mechanism to challenge employers' decisions. How can that be improved?
Ms Hope: With regard to flexible working? I do not like that part of the legislation at all because it is cumbersome and legalistic. It almost implies that you are going to have such problems that you will end up in tribunals. That is not the way forward. The Bill allows an employee to complain to an employment tribunal that the employer has failed to comply with his duties in relation to the application for flexible working, or that a decision by the employer to reject the application was based on incorrect facts. For example, the employer might say that he could not allow flexibility for some reason, while the employee might say that the time off could be covered.
The way that the Bill is written, it seems to suggest that the tribunal's role is merely to ensure that the employer has followed a statutory procedure and that the quality of the decision can only be scrutinised in so far as it is based on particular facts that the employee can show to be incorrect. That is not the way to try to come to an agreement about whether someone can have flexible working arrangements.
I am not sure whether that is all included. We were told that one of the instructions to the committee, which George Bain chaired, was that it should have an easy touch. We do not know whether it was to be so easy that people would find it almost impossible to access the flexibility arrangements in the first place. We will keep our eye on it. We will also encourage our affiliates and members who wish to avail of it to do so. We will try to draw up some guidance for them. It is important, particularly in relation to flexible working, that there is some sort of code of practice or guidance for employers and employees on those issues.
Mr Gourley: The big employers have no problem when they want to work flexible hours. They do not care about your daughter or my daughter who is married with a wee family and who has been used to working a certain rota every week. They tell her that the next week she will be working a changed rota. When the wee girl says that she will have to leave because she cannot work it, the employer says "Well, it is your choice; leave if you want."
Having said that, we are experienced in trying to accommodate the employer and saying that there must be other ways to resolve a problem. We discuss it and consider other ways. We are conscious that that is more important for employers, especially of small businesses. We would sit down and discuss any problems. It would not be the first time that employers have come to us and said that there is no money on the table. We then have to inform our members of that responsibly. We are not about closing businesses. We would say to workers, when we have to, that there is no money available for pay rises, et cetera. We are responsible in that way. Any problem with flexible working can be thought out and thoroughly resolved within the establishment, whether it is large or small.
Dr Adamson: I have found the discussion useful. I have no questions.
The Chairperson: I have one brief question. Thank you for your written evidence. There was one phrase that some of us perhaps found slightly disturbing - you said that paternity leave should not be linked to what you described as "an artificial concept of parental responsibility". I would have thought that the concept you were disagreeing with was a highly natural concept of parental responsibility.
Ms Hope: I meant that there are people who take on parental responsibility who are not the biological parent. If the legislation relates only to biological parents, it may preclude other carers from accessing the leave.
Mr Carrick: How would you counter the potential abuse in that situation - the linkage to those claiming social security benefits and perhaps also trying to claim paternity benefit?
Ms Hope: They can only claim paternity benefit if they are in work: it is a workplace benefit. As the Bill shows, there are tests to be taken - not quite DNA, but almost - to prove who is the father of the child. We were thinking especially of young women who are not married and have a child. It must be realised that it is usually a close family member who provides the support, and people should not be deprived of support at that time. I do not think that the system will be abused.
The Chairperson: The Bill refers to a service qualification requirement: would you prefer that it were not included?
Ms Hope: Yes. Most people must have 26 weeks in a particular employment. That qualification is not needed to access the ordinary maternity leave, so we cannot understand why it is needed to access the entitlement provisions. For example, where a mother does not need that service qualification and her partner has not been in work long enough, she may be out of maternity leave and he may not even get the two weeks' paternity leave. That is an anomaly that needs be looked at - and the same goes for adoptive leave.
The Chairperson: OK.
Mr Gourley: When we are thinking about those issues, we should be thinking about how we would like our own families to be treated. That is the crux of the matter.
We have a partnership agreement with Tesco. It is not Utopia, but, working in partnership with its workers and the trade unions, throughout Great Britain and Northern Ireland, we jointly made Tesco the leader in the retail market with a profitable business. We do not want to crucify anyone.
The Chairperson: I am sure that Tesco would be grateful for that advertisement. Supermarkets were mentioned earlier.
Mr Gourley: We have big problems with Tesco, but we sit down and work them out.
The Chairperson: Thank you all for coming. It has been helpful. Thank you also for your written evidence. If you have any detailed suggestions and amendments, could you please send them to us by the end of August.
Mr Gourley: NIC-ICTU will send you notes on how it sees things on the main points. We appreciate the opportunity to have an input into family-friendly policies. It is good to see Northern Ireland standing on its own feet.
The Chairperson: Thank you all very much.
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