COMMITTEE FOR EMPLOYMENT AND LEARNING

Report on the Employment Bill

NIA Bill 11/01 (Continued)

Report: 1/02R

151.

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.

152.

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.

153.

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.

154.

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.

155.

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.

156.

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.

157.

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.

158.

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.

159.

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.

160.

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.

161.

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 aging 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.

162.

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.

163.

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?

164.

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.

165.

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?

166.

Ms Hope: Do you mean in the first place, or at any age?

167.

Mr Hilditch: At any age, but particularly younger children.

168.

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.

169.

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.

170.

The Deputy Chairperson: 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?

171.

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.

172.

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 why 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.

173.

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.

174.

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.

175.

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.

176.

The Deputy Chairperson: 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.

177.

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.

178.

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.

179.

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 had 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.

180.

Mr Carrick: In a competitive world, smaller businesses with fewer than 10 employers 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.

181.

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.

182.

Mr Carrick: I would love to come back on that, but I must let others speak.

183.

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.

184.

Are there ways in which the proposed legislation dealing with flexible working arrangements could be amended to enhance its contribution to small businesses?

185.

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.

186.

Mr R Hutchinson: Do you admit that there are circumstances where such arrangements would not be possible?

187.

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.

188.

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.

189.

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.

190.

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.

191.

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.

192.

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.

193.

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.

194.

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.

195.

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 these as minimum rights. We hope to better those, where possible.

196.

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.

197.

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.

198.

Mr R Hutchinson: Why does he always have to get personal?

199.

Mr Dallat: If you interrupt me again, I will walk out.

200.

Mr R Hutchinson: Well, go.

201.

Mr Dallat: You did that last week; you are not doing it again.

202.

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?

203.

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.

204.

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.

205.

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.

206.

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.

207.

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, Mr Carrick. We need to 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.

208.

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?

209.

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.

210.

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.

211.

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?

212.

Ms Hope: One cannot.

213.

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 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.

214.

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.

215.

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 have a contribution to make in securing the realisation of the legislation.

216.

Mr Dallat: You are not happy with the mechanism to challenge employers' decisions. How can that be improved?

217.

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.

218.

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.

219.

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.

220.

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."

221.

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.

222.

Dr Adamson: I have found the discussion useful. I have no questions.

223.

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.

224.

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.

225.

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?

226.

Ms Hope: They can only claim paternity benefit of 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.

227.

The Chairperson: The Bill refers to a service qualification requirement: would you prefer if that were not included?

228.

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.

229.

The Chairperson: OK.

230.

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 crux of the matter.

231.

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.

232.

The Chairperson: I am sure Tesco would be grateful for that advertisement. Supermarkets were mentioned earlier.

233.

Mr Gourley: We have big problems with Tesco, but we sit down and work them out.

234.

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.

235.

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.

236.

The Chairperson: Thank you all very much.

Thursday 27 June 2002

Dr Birnie (Chairperson)

Mr Carrick (Deputy Chairperson)

Mr Adamson

Mr Dallat

Mr Hilditch

Mr R Hutchinson

Mr R Gamble ) Department for

Mr W Caldwell ) Employment

Ms L Taylor ) and Learning

237.

The Chairperson: I welcome Mr Roy Gamble, assistant secretary of the Employment Right and New Deal Division; Mr William Caldwell, leader of the Employment Bill team; and Ms Lynn Taylor, also from that team. I understand that you wish to talk us through groups of clauses, after which you will take questions.

238.

Mr Gamble: We agreed with the Clerk that that would probably be the most sensible approach. The clauses have been grouped together. Clauses 1 and 4 are about adoption leave and pay, and clauses 2 and 3 cover paternity leave and so on. I shall go straight into the content of the clauses.

239.

Clause 1 establishes a new right to what are called ordinary adoption leave and additional adoption leave. They provide recognition of the role played by adoptive parents in improving the chances of children who have, in many cases, been disadvantaged in some way. It is intended to give adoptive parents a right to a total entitlement of up to one year's adoption leave, allowing them time to care for a new child and build new relationships. The idea is to enable them to take time off during the crucial months following the arrival of a child, thereby reducing the number of adoption placements that go wrong and are disrupted. The ordinary and additional adoption leave right will apply to children adopted from abroad as well as from inside Northern Ireland. The clause also covers the rights of parents while on adoption leave and when they return to work.

240.

Many of the features will be in Regulations. For example, the length of ordinary adoption leave will appear in Regulations to be made later this year, after the Bill is enacted by the Assembly. The intention is 26 weeks' paid ordinary leave followed by 26 weeks' additional leave at the discretion of the adoptive parent. If they wish to take that additional leave, it would be unpaid. There is also details of what notification must be given to employers, and which of the adoptive parents, the male or the female, can take the adoption leave - indeed, sometimes it is a single-sex couple.

241.

Dr Birnie: That is an interesting point. It is transferable, and not specified.

242.

Mr Gamble: For example, if a married couple were adopting, the male might decide to take adoption leave of six months if the wife were better paid. The loss of income would be less if he took time off. Broadly, that is the intended entitlement to leave.

243.

Clause 2 deals with payment for the leave. As I said, the first 26 weeks would be payable. The rate currently intended, which will be specified in the Regulations, is £100 a week - the same rate as statutory maternity pay - or 90% of average pay if that happens to be lower. Some kind of threshold will apply to people earning under a certain amount. They will not be eligible for statutory adoption pay, which also reflects maternity arrangements.

244.

Mr Carrick: There is reference in the Bill to excluding existing foster carers. Is there any specific reason why they should be excluded if they wish to adopt?

245.

Mr Gamble: They would not be excluded if they wished to adopt. They are only excluded in relation to their existing foster arrangements.

246.

Mr Carrick: Is that what the Bill says?

247.

Mr Gamble: I have misunderstood you. If they are already fostering a child and wish to adopt that child, they are excluded, since the purpose is to give people a chance to form a relationship with a newly adopted child. With a child who has already been fostered for some time, the assumption is that the relationship must already exist. If that is to be changed into an adoption arrangement, there is no need to build that relationship, since there has been time to do so during the fostering phase.

248.

Mr Carrick: If foster parents wished to adopt an additional child, would being foster parents exclude them from qualifying for the newly adopted child?

249.

Mr Gamble: No, that is what I initially understood as your question. The purpose is to allow a new relationship to be established. If someone is already fostering a child, and is then adopting another child, they will be eligible for paid leave.

250.

Mr Carrick: The wording would not disqualify them because they are already foster parents?

251.

Mr Gamble: Those matters will be spelt out in detail. The Bill provides a general framework, and much will have to be put in the Regulations. However, we hope that will be clear.

252.

Mr Carrick: Unmarried partners or cohabitees who adopt children are covered by the proposals. How would that be monitored? Is it open to abuse?

253.

Mr Gamble: That is a good question. The authorities and adoption agencies regulating placements ensure, to the best of their ability, that such abuse does not happen, and that those chosen are suitable. The Bill deals with the situation afterwards, rather than with the suitability of adoptive parents. It concerns paid time off once a placement is arranged. It is up to the relevant authorities and agencies dealing with the adoption to ensure that adoptive parents are suitable and appropriate.

254.

Mr Caldwell: As Mr Gamble says, adoptive parents must satisfy certain criteria, and the Inland Revenue also has a function. It may carry out routine checks if anyone attempts to obtain any benefit or pay to which he or she is not entitled. First, people must satisfy the criteria to become adoptive parents. Secondly, the Inland Revenue may carry out routine checks from time to time.

255.

Mr Carrick: That is reassuring. I can envisage circumstances, when relying on an agency's definition of an adoption, where that adoption might be somewhat tenuous. I am glad that the Inland Revenue, albeit not be in every case, carries out further checks to see that the conditions have been met. In the light of recent court decisions and legislation, does this just apply to heterosexual couples, or does it include people of the same sex?

256.

Mr Caldwell: Theoretically, it is possible for two people of the same sex to avail of this. That is with the caveat that to obtain a child for adoption in the first instance, the individuals have to satisfy the particular requirements of the agency or authority that is responsible for that aspect of social policy.

257.

Mr Hilditch: In your introductory comments, Mr Gamble, where you saying that inter-country adoption is not an issue now?

258.

Mr Gamble: No. It was mentioned in the Second Stage debate, and our understanding is that there would be no difference. There is no intention in the Regulations to discriminate between children adopted from abroad and children adopted in Great Britain or Northern Ireland, on the principle that there is no reason to discriminate against the child in that way. More time would be needed to establish a relationship with a child from abroad.

259.

Mr Hilditch: That is certainly the case. I have dealt with some of those cases in my constituency, and the adoptive parents have to endure a great deal.

260.

Dr Adamson: How does the Department intend to guard against disadvantaging other employees during the adoption leave-related absences, for example, where the workload is increased or the flexibility to take leave is reduced?

261.

Mr Gamble: That is a difficult issue. The Department does not intend to do anything directly, except perhaps to try and give good guidance to ensure that employers take account of the fact that they may be putting more pressure on those remaining in the workplace. Employers might need to take on temporary replacements, and undoubtedly there will be costs for employers. The Department can give advice, or hints on good practice, but would not be thinking of compensating employers.

262.

Mr Carrick: You have said that there will be costs, and I know that small businesses will be reimbursed. However, the Federation of Small Businesses has given evidence to the Committee that outlined the volume of administrative work that has to be undertaken. They used the term "unpaid tax collectors".

263.

The Department is also responsible for employment in general terms - the securing and maintaining of jobs. We have a small business economy in Northern Ireland. The percentage of National Insurance contributions is a paltry one, and will not offset the additional costs that small employers incur. Does that concern the Department?

264.

Mr Gamble: It is obviously of some concern, but we do not expect a vast uptake of adoption leave. The figures show that one might expect about 100 cases a year in Northern Ireland. That will not fall as a heavy burden on the economy, although individual employers may feel the pinch. Small employers will not have to pay any of the statutory pay. That will be reimbursed, plus a little more. Employers may incur other costs. There are always trade-offs when dealing with such matters, and there may be a cost for offering a benefit. However, an employer may have a good employee whom they wish to retain, and instead of the employee having to resign and the company having to recruit another person, the employer will get the employee back in six months' time.

265.

Mr Carrick: I understand the principle, but if a key worker is off for six months to a year, the company will have to train a replacement, which costs money.

266.

The Chairperson: I want to return to an important point that has been raised before in the Committee about adoption of children from overseas. I think that the relevant article in the Bill refers to a person with whom a child is, or is expected to be, placed for adoption under the law of any part of the United Kingdom. I do not know enough about this subject. Is it conceivable that people living here could adopt a child according to the law of another state - presumably the state from which the child comes - and therefore this article would rule them out?

267.

Mr Caldwell: No. It is more a case of the law of the United Kingdom being such that if a person is accepted to be adopted from outside the UK, they would be included.

268.

The Chairperson: Are you confident that it will be interpreted in the way that you have explained, and not in the way that I understood it?

269.

Mr Caldwell: Yes. The draftsman was given the instructions to include people from outside the UK, so I bow to his knowledge.

270.

The Chairperson: Clauses 1 and 4 of the Bill mention employees. Why could the Bill not be drafted to include self-employed persons?

271.

Mr Gamble: Work is ongoing to consider the question of employee status, and I do not claim expertise in this matter. Apparently it is very complicated, and includes people such as agency workers. There are a variety of employment relationships, including self-employed people. The Bill is deliberately restricted to employees because there is a clear employer/employee relationship. It is difficult to see why a self-employed person would need to be given the right to take adoption or parental leave.

272.

The Chairperson: Employees of companies receive pay during such leave.

273.

Mr Gamble: Self-employed people would not be eligible for pay during the time that they took off. Broadly speaking, the taxation system is said to be slanted or weighted so that self-employed people get a reasonable deal from the taxman, and should able to make arrangements for leave because of that. There is little reason why the state should pay self-employed people to take time off from their own business.

274.

The Chairperson: Admittedly, we are entering into a broader philosophical or ideological area. If the principle of some form of paid maternity, paternity or adoption leave is accepted and applied to employees, equity would make me ask why the self-employed or those other groups that have been mentioned should be excluded? I declare an interest as my wife is semi-self-employed, but that is not the only reason why I ask that question.

275.

Mr Carrick: I must declare an interest too as my wife is self-employed. However, there are hundreds of self-employed people who would challenge your assertion that they are in some way better off than the employed. The taxation system is designed to be fair, though there may well be people who exploit it in some way. The whole definition of employee is hinged on the master/ servant relationship, and that ought to be the definition. However, as the Chairperson said, I do not see why we should discriminate against the self-employed. Many self-employed people operate away from their home; they lose out by staying at home and need to be compensated, just like an employee. We are being discriminatory.

276.

Mr Gamble: I have tried to put across the Inland Revenue's line that the taxation system tries to be fair to the self-employed and recognises their risks and special circumstances.

277.

Mr Carrick: Working on personal taxation for 35 years on the other side of the counter for the Inland Revenue, I never encountered that approach.

278.

Mr Dallat: Can we expect a rash of applications for private limited companies, which would make self-employed people employees, to deal with the problem that you are talking about? That is the solution to the problem.

279.

Mr Gamble: You are asking me to speculate, and I do not know.

280.

Mr Dallat: If anyone commits fraud in claiming statutory adoption pay the maximum penalty is £3,000, but with statutory paternity pay, it is £300.

281.

Mr Gamble: Which clause are we discussing?

282.

The Chairperson: We are going through the Bill clause-by-clause; clauses 1 and 4 were combined. What clause are you referring to?

283.

Mr Dallat: Clause 11.

284.

The Chairperson: Clause 11 is relevant at this point. There is a discrepancy in that one penalty is ten times higher than the other, which seems strange. Why is that?

285.

Mr Gamble: Statutory adoption pay can go on for 26 weeks, and you can get a maximum of £2,500 from that. You can get a maximum of £200 from the other.

286.

Mr Dallat: That is a fair answer.

287.

The Chairperson: That makes sense. We will move on to the next set of clauses.

288.

Mr Gamble: We will take clauses 2 and 3 together because they deal with paternity leave and pay. As with clause 1, clause 2 establishes a new right. It allows fathers, or in some cases females, to take two weeks leave around the time of the child's birth. The Regulations will set out the detail of that. However, the proposal would be that paternity leave would consist of two weeks, to be taken in a single block, or one week if the employee wishes to take only one week. As with adoption pay, paternity pay, which is attached to the leave, is a part-income replacement. It does not replace people's wages, just assists. Therefore, some people may choose to take one week, and if they take two weeks, it must be in one block. The Regulations will also state that leave should be taken within 56 days, or eight weeks, of the birth. Giving notice to the employer will be included, and employees must have 26 weeks of service with the employer before they qualify for paternity leave.

289.

The point is that fathers want an opportunity to be more involved around the time of the birth, and to give some assistance to the mother during that difficult period. Currently a lot of people get time off - either they are given time off by their employers, or in some cases they take sick leave. The Bill is recognising a societal move, and there are benefits that may come out of that, such as better relationships established from the breathing space around, what often is, a difficult time. The Regulations will state most of the detail about amounts of time and pay. However, it is the same sort of intention as with adoption pay - £100 a week or 90% at the lower limit.

290.

Mr Dallat: You referred to some employees taking sick leave, and there are circumstances where employers and employees agree this, if, for example, the mother is suffering from post-natal depression or the child is born with some incurable disease. The higher up the profession, the more likely that flexibility would apply, and no one criticises that. However, it is more difficult to do that at the lower end of the employment scale. Why is there nothing in the Bill to give rights to people in very difficult circumstances?

291.

Mr Gamble: The Bill gives people the right to paternity leave, and, currently, that does not exist.

292.

Mr Dallat: Yes, but there may be special circumstances, where the length of time is not sufficient to deal with crises, and there is nothing in the Bill to give extended paternity leave.

293.

Mr Gamble: Two weeks was the period agreed, and it seemed to be acceptable in the consultation. It is attempting to achieve a balance between employers and employees. Since last year or the year before, another right exists for people to have unpaid parental leave, as opposed to paternal leave, for up to four weeks in any year, and for 13 weeks over a period of five years. People can have time off in those circumstances, and many employers would take a humane view about that. The Bill is trying to deal with the creation of a general right for people in ordinary circumstances. It is not trying to deal with the extraordinary.

294.

Dr Adamson: Why is there a service qualification requirement for paternity leave when no such requirement is needed for maternity leave? This is something that came out of our discussions with the Irish Congress of Trade Unions (ICTU).

295.

Mr Gamble: That has to do with physiology, and also the law requires women to be off work during pregnancy and birth. There are physical dangers and health and safety matters requiring women to be off work at an early stage, and those things do not apply for men. Employers should not have to make special arrangements for an employee who starts work one week and then says the next week, "Sorry, my wife is pregnant and I want to take two weeks off." It would be a sign of the relationship between the employer and employee. Women have less room for manoeuvre.

296.

Dr Adamson: Some men seem to go through the full rigours of pregnancy.

297.

Mr Hilditch: Will the Department provide any guidance, advice, or help to employers to cover the statutory paternity pay absences, specifically in relation to paid/non-paid overtime and loss of productivity?

298.

Mr Gamble: Sorry, are you suggesting that the Department should make payments to employers?

299.

Mr Hilditch: Will it give guidance or any sort of help?

300.

Mr Gamble: The Department will ensure that people understand the provisions. The Inland Revenue and the Department will issue guidance on how to ensure payments are made and recovered properly by the business. There will be some losses if staff cannot be replaced for two weeks, and it is probably unlikely that they will be replaced. The business would have to try to get around that.

301.

Mr Caldwell: The Department will be working closely with the Inland Revenue to ensure that whatever guidance is prepared embraces Northern Ireland's position. The Inland Revenue will be producing information on its web site and will be making direct contact with those who pay employers National Insurance contributions. Hopefully adequate guidance will be prepared before the Bill comes into effect.

302.

Mr Carrick: I do not want to go over old ground, but the same thing applies here, as for adoption, for agency workers and the self-employed. Do New Deal participants qualify? I assume that statutory paternity pay will be aggregated with an individual's income and will be subject to income tax and National Insurance in the same way as statutory sick pay.

303.

Mr Caldwell: I imagine that it would be aggregated with their income. The broad rule is that New Deal participants are required to have 26 weeks' continuous service. They may well be eligible following that period.

304.

Mr Carrick: Will you clarify that?

305.

Mr Gamble: It is unlikely that that could be the case because New Deal is a 26-week programme. There are many elements to it, but only one of them is an element in which the New Deal participant is an employee. Other elements are when they are in full-time education or one of the other options. New Deal finishes after 26 weeks, so an employee could not give an employer notice after 15 weeks that he is going to take paternity leave because he would not be with that employer then. If he got a permanent job with that employer or established a record with a new employer, service as an employee would count.

306.

Mr Carrick: This is another sector that could be discriminated against.

307.

Mr Gamble: Unless you think that 26 weeks is discriminating against people. The feeling is that there needs to be a qualifying period that accepts that the employer has responsibilities for people with whom he has a relationship, but not with people with whom he has worked for two weeks.

308.

Mr Carrick: If a person on New Deal gets a permanent job with that employer, or another employer, after the 26 weeks, do those weeks count as continuous employment?

309.

Mr Gamble: Those weeks would count if they were with the same employer.

310.

Mr Carrick: Would they count if the New Deal person gained employment with another employer?

311.

Mr Gamble: Those weeks would not count if anyone changed jobs, never mind someone on New Deal.

312.

Mr Carrick: Therefore, it is not 26 weeks' continuous employment, but it is 26 weeks with the same employer. Is there a good reason for that?

313.

Mr Gamble: There reason is because there is disruption to the employer. We have recognised that it imposes difficulties in costs for employers.

314.

Mr Carrick: For continuity, we have the same system with income tax. People can transfer, through their P45, for income tax and National Insurance purposes. They still qualify for statutory sick pay even though they change employers. It is not necessarily that people have the one employer; it is the service that matters.

315.

Mr Caldwell: One of the differences may be that this is viewed as an employment right as opposed to a social security right.

316.

Mr Gamble: This is not a social security right - if you are sick, you receive sickness benefit. However, you do not have to take statutory paternity leave unless you want to take it. In most cases it will cost employees something if they take statutory paternity leave because they will only get £100 a week. They do not have to take it if they do not want to, or they can take one week instead of two. This is not a social security benefit in the same way as statutory sick pay. It is also different from paying your income tax on transfer.

317.

Mr Carrick: Will that be taxable if it is not a benefit? It may not be aggregated with your income. There seems to be a grey area here that needs to be investigated.

318.

Mr Gamble: I do not know the answer to that, and we will check that. The Bill is quite complex. It proposes to tie in the tax and social security systems into employment rights concerned with leave and pay. I do not claim to be fully conversant with all the alternatives for the tax and social security systems, but I am sure that the Inland Revenue will know what it intends to do about the £100 per week.

319.

Clauses 5 to 7 relate to financial arrangements, funding and payment. Clause 5 details the financial arrangements that will apply to both adoption and paternity pay. The clause covers where the money will come from that will ultimately be paid to the new parents and cover the Inland Revenue's costs in administering the scheme. To bring that about, the clause will amend the relevant social security legislation that makes the same provision for statutory maternity pay. The clause details how Government will fund payments. The Consolidated Fund will reimburse the National Insurance fund for moneys paid out under both forms of new statutory pay. Essentially, it is a technical Government finance clause that the user of those statutory arrangements will never know, or need to know, about.

320.

Mr Dallat: What happens if an employer is really mean and just does not pay?

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