COMMITTEE FOR EMPLOYMENT AND LEARNING

Report on the Employment Bill

NIA Bill 11/01 (Continued)

Report: 1/02R

995.

Mr McElduff: Disagreed.

996.

The Chairperson: Given that there has been some disagreement, we shall examine an amendment to Clause 18 to delete "Employment Act" and insert "Parental Employment Rights Act".

997.

Mr Carrick: I have listened to what Mr Caldwell and Mr Gamble said. Is there danger that our legislation will be confused with the Employment Bill in Great Britain? That might sway me. I have sympathy with conveying a message through the short title, but in doing so we may be causing confusion. We must be consistent.

998.

The Chairperson: The Act in Westminster is substantially the same thing. Might harm be done if the two pieces of legislation bore different names?

999.

Mr Caldwell: Generally speaking the convention is that Northern Ireland tends to follow Westminster closely because employment law in Northern Ireland, with a few minor exceptions, is identical to that in Great Britain, thus making it easier for internal investors, various employers and employment lawyers to understand what the rights are in Northern Ireland. This is because, in many instances, business transcends across the United Kingdom.

1000.

As Mr Gamble said, most of the provisions are inserting provisions in other existing legislation. The Bill, when enacted, will probably only be referred to by legal people or people directly concerned with it, such as MLAs, MPs or officials. For simplicity, in many instances, it is easier for people to grasp that in Great Britain the Employment Act contains provisions dealing with adoption leave, paternity leave and maternity leave and flexible working. To call the Northern Ireland counterpart the Employment Act Northern Ireland is generally simpler all round.

1001.

The Chairperson: That is a powerful case in favour of keeping the title. A counter argument, which might be seen as a political judgement, is whether the Assembly should adopt a different approach.

1002.

Mr McElduff: Are we afraid to lead? Do we have to follow all the time?

1003.

The Chairperson: As the Northern Ireland Assembly, we may want people to read in the newspapers that the Employment Bill or the Parental Employment Rights Bill has been enacted, and we might prefer a title that told people what is in the Act. Arguably, that approach is better than that adopted in Westminster hitherto. There may be a gain from copying the traditional Westminster practice; equally, if we decide that we do not like that practice, there is a loss from copying it. We have to weigh that up.

1004.

I beg to move

1005.

That the Committee recommend to the Assembly that the clause be amended as follows: leave out "Employment" and insert "Parental Employment Rights".

The Chairperson, Mr McElduff, Dr Adamson.

Mr Hilditch, Mr Carrick

1006.

We still have to cover the two Schedules and the long title.

1007.

Mr Caldwell: The Committee has already passed the sections that cover the Schedules.

1008.

The Chairperson: There might be a problem if we were to amend Schedules because of the consequential effect on clauses. Nevertheless, we have to formally recommend each of the Schedules. Do members have any comments on Schedule 1?

1009.

Mr McElduff: We need a quorum and toilet rights act.

1010.

The Chairperson: We may be able to have a short break after we have got through the long title.

1011.

Dr Adamson: Unfortunately I shall have to leave shortly.

1012.

Question, That the Committee is content with Schedule 1, put and agreed to.

1013.

The Chairperson: Are there any questions or comments on the amendments to Schedule 2? The point of the Schedules is to define terms used in the clauses.

1014.

Mr Caldwell: They tend to be consequential.

1015.

The Chairperson: If we have agreed the clauses earlier, then the Schedules must be agreed to support the clauses in consequence.

1016.

Question, That the Committee is content with Schedule 2, put and agreed to.

The long title of the Bill is: "A Bill to make provision for statutory rights to paternity and adoption leave and pay; to amend the law relating to statutory maternity leave; to make provision about flexible working; and for connected purposes."

1017.

Question, That the Committee is content with the long title, put and agreed to.

1018.

The Chairperson: The Committee has completed the clause-by-clause scrutiny of the Bill. Therefore, with the Committee's agreement, I ask the Clerk to produce a draft report for next week's meeting. The report will detail the process that the Committee has completed and include a preamble on some of the points that we discussed before the clause-by-clause scrutiny, such as the definition of the term "worker". The Committee must also decide whether it is happy for the motion to extend the Committee Stage for up to four weeks to be tabled on Monday.

1019.

Mr McElduff: What is the principal argument for an extension?

1020.

The Chairperson: The main reason for requesting an extension is that the Committee may need longer. We may be able to agree on the Bill relatively quickly, but that depends on the Committee's reaction to the report. In fact, the motion for requesting an extension has been tabled, but the question is whether I move the motion. It would be wise to move the motion so that the Committee has an option to fall back on. If I do not move the motion, the Committee Stage ends on 19 September, which is this time next week. The Committee, therefore, would have only a week to agree on the report.

1021.

I also seek the Committee's agreement to the Clerk's reducing the length of time given to Members and witnesses to suggest corrections to the Hansard evidence.

1022.

The Committee Clerk: The normal time frame for making suggestions is 10 working days, but I intend to present as much of the report as possible, if not the whole report, by next week. That will depend on the agreement of Members and witnesses to a very short turnaround time. Would Members prefer to have part of the report included in their packs for next week's meeting?

1023.

The Chairperson: In other words, would the Committee prefer to wait until next week's meeting for the whole report or to receive part of the report a few days ahead of the meeting, and the remainder at the meeting?

1024.

Mr McElduff: I would prefer to receive part of the report in advance.

The Committee indicated assent.

1025.

The Chairperson: We have completed today's business. I thank Mr Gamble and Mr Caldwell from the Department for Employment and Learning, and the clerk from the Bill Office.

10 June 2002

The Federation of Small Business (FSB) is the largest group representing the interests of the self-employed and those who direct business in Northern Ireland. The FSB has 170,000 members nationally of which, nearly 3,000 are based in Northern Ireland. The FSB is run by business people for business people and is funded by member subscriptions.

Its membership in Northern Ireland elects an Area Policy Committee, which is supported by a full time Policy Officer. We also run a full time Press & Parliamentary Office in Belfast.

The Federation of Small Business welcomes the opportunity to contribute to the Committee of Employment and Learning, Employment Bill. The FSB recognises and welcomes the positive aspects of the Bill, however, we have many concerns on how it will affect the small business community - the backbone of the Northern Ireland economy. We are disappointed that the Bill does not distinguish between large and small employers. We also have grave concerns that this Bill does not address the inequalities faced by the self-employed. There are many ambiguities in the Bill for example it does not address how employers can claim back administration costs.

Implementing costly regulations on a large proportion of the business community that already recognise and offer flexible working policies over and above the current regulated standards would not be in the best interest of Northern Ireland, employers and employees.

For the purposes of this submission we will concentrate on 3 areas, which are of greatest importance to the small business community:

1. Simplification, advice and guidance

2. Managing Absences

3. Flexible Working

The Legislation intends to give working parents with children under 6 (or disabled children under 18) who have been with their companies for a minimum of 6 months the right to make written requests for flexible working. Companies can reject the request but they must set out a considered business case for doing so. Employees will be able to seek redress before an employment tribunal if they feel their requests have not been taken seriously. Employment tribunals will only be able to rule on procedures, facts and whether a business case has been made. Thus if employers follow the correct procedure, they are unlikely to see their decision overturned by the tribunal. Nevertheless, the consequence of this proposal is likely to be an increase in employment tribunal applications from employees who feel that their employer has failed to give their request to work part time adequate consideration. The implications of this measure are directly contrary to the Bill's objective of reducing the number of employment tribunal applications.

We recommend that resources should be geared to educating and supporting businesses that do not already have flexible working policies or the in-house expertise required to implement them. A clear focus should be put on helping those businesses that do not recognise the 'competitiveness' benefits of doing so.

For a large company, cover can easily be arranged, often from the same department, and if a temporary worker is needed, it can be easily afforded. For a small business of, say, 4 employees, a member of staff on leave will equate to 25% of the firm's workforce.

It should have been recognised that in small firms each worker plays a key role, one, which often requires specialist training. In fact, one worker may even be the whole department. So if a key worker is absent, the business owner will not only have to take on cover but spend time training that temporary employee.

The simplification of current regulation to help reduce the complexity of red tape would be welcomed by the business community and as a one off cost must be more economical than introducing systems with continual costs to both the N. Ireland economy and the business community.

Advice and Guidance - We would like to see all the suggested options of guidance and advice available, but with targeted distribution of flow charts, maternity leave contracts and guidance setting out rights and responsibilities to the businesses that it will benefit from them.

The implications of introducing much of the legislation will depend on which payment mechanisms should or could be adopted. The worry is that if the government continues to regulate the cost and the administration burden to the business community, it will become untenable.

Whilst in the context of this bill we feel the payment mechanisms is not the area for key focus we do want to stress that small businesses strongly resent being unpaid tax collectors and that the whole issue of 'tax collection' by small businesses needs to be addressed by Government.

This is key to the success of moving to a more flexible working 'culture'. Advice and guidance on managing absences needs to focus on supporting the education of businesses to develop 'best practice' within the work place as well as looking at the relationships of the Employment Service and private recruitment agencies.

If the Department wishes to support the development of flexible working it needs to allow individual businesses the opportunity of exploring flexible working options that not only fit the company but that of the employee. If legislated the government would:

• restrict the opportunities for flexible arrangements for the employee (demonstrated by the current restrictions on the working whilst on maternity leave);
• restrict the development of businesses through imposing impracticable working practices on employers;
• restrict the development of businesses through reduced profits due to cost of implementation of regulations;
• inflict unnecessary regulation costs on the large number of businesses that already offer these options to employees on either a formal or informal basis;
• build further resentment from the business community which already has a huge problem in keeping abreast of current legislation as it will be imposing more 'red tape' rather than reducing it;
• encourage recruitment discrimination of men and women of child-bearing age;
• discourage the business community from positively embracing the 'Working Life Balance' culture.

WILFRED MITCHELL
Policy Chairman

20 June 2002

The Northern Ireland Committee of the Irish Congress of Trade Unions (NIC.ICTU) is pleased to give evidence to the Committee for Employment and Learning on the first stage of the Employment Bill.

NIC.ICTU made comprehensive responses to the consultative documents Work and Parents - Competitiveness and Choice; the Proposals to simplify and speed up Industrial Tribunal procedures in Equal Pay Cases and implementation of the Burden of Proof Directive; and on the Fixed-Term Work directive. We have also responded to the framework documents on Changes to the regulations governing parental leave; A framework for simplification to the rules governing maternity pay and leave; A framework for paternity leave; and A framework for adoption leave.

While welcoming the positive proposals in all of the above, NIC.ICTU also voiced concerns about some of the proposals contained in the documents and also made recommendations on a number of issues. Our main concerns are outlined below and will form the basis of our discussion with the Committee.

However, in all of the submissions we argued that all 'family friendly' employment rights should apply to workers and not just to 'employees'. A considerable number of workers in households with at least one dependent child under sixteen works part-time, many others have temporary jobs or work at home. Many of these workers will not fit into the legal definition of employee.

We agreed with the government that adoption leave would bring recognition and support for the vital role that adoptive parents play. For that reason we believe that there are good arguments for the main carer in an adoption situation being eligible for earnings replacement for adoption pay in order to encourage parents to adopt (and bearing in mind that the main carer is normally a woman) whilst maintaining their position in the labour market.

We do not see any reason for imposing a service qualification requirement for leave either for the main carer or a partner.

We also argued that an adoption allowance scheme for low paid adopters earning under the Lower Earnings Limit could be part of the current Maternity Allowance system which would therefore reduce its costs. Alternatively, adoption pay for these workers could be included in a reformed, simplified and unified system of statutory payment for maternity, paternity and adoption leave to include low paid workers earning under the Lower Earnings Limit.

We welcomed the proposed new right to paternity leave. However, we are concerned that the right as implemented should reflect what mothers, fathers and other adults supporting them actually need around the birth of a child. We recommended that the right to leave should be drafted to include those who will have close contact with the mother and baby around the birth as we do not think that it should be linked to an artificial concept of parental responsibility.

We do not see any reason to impose a service qualification requirement. Ordinary maternity leave does not have a service qualification.

We cannot see the arguments for making leave 'inflexible' as it often would be more helpful for both employees and employers for the leave to be taken in days at a time or on a part-time basis.

We argued that it should be possible to have a scheme such as that for maternity Allowance for low paid fathers or other carers earning under the Lower Earnings Limit. This could also cover self-employed people. Alternatively, the entire system of maternity and paternity pay could be reformed, simplified and unified to include low paid workers earning under the Lower Earnings Limit.

We would also be interested to know how the government is going to allow for birth support for same-sex partners. It seems that the intention is to require the acquisition (or expected acquisition) of legal parental responsibility. The use of parental responsibility as a criterion for eligibility discriminates against those non-biological carers who may have difficulty establishing parental responsibility through joint residence orders, do not know of their rights under family law, or who cannot get access to good legal advice and help for financial or practical reasons. Relating rights to a large extent to biological parenting tends to act to the disadvantage of children of single parents.

We welcomed the aim to simplify maternity pay and leave provisions and reminded the government that it is also necessary to look in detail at the effective enforcement of maternity rights legislation, including the operation of sex discrimination law and health and safety rights.

We congratulated the government on the extensions to maternity leave and pay, which we think are long overdue. However, we remain disappointed at the lack of acknowledgement of the importance of earnings replacement for maternity pay. This is an area where 'limited universalism' is fully justified in the interests of the health and welfare of all working women and their babies and the protection of labour market participation of women.

We are disappointed that the entitlement to additional maternity leave has a qualifying service condition and urged that this be reconsidered.

We also do not believe that the proposals will increase significantly the number of women who will be able to benefit from longer periods of maternity leave as long as this remains unpaid.

We welcomed the reduction of he sickness trigger to four weeks before the expected week of childbirth, but would still like to see it abolished altogether or, in any event, redrafted so as to be clearly limited to sickness reasons, and to allow for an employer expressly to agree that it should not apply.

We also believe that the level of maternity pay is set too low and does not compare favourably with most other European countries.

NIC.ICTU disagreed that six years be the cut-off age after which parents have no absolute right to request flexible working. The key issues should be the needs of the child and the family and not an artificial age barrier.

The Bill allows an employee to complain to an employment tribunal that the employer has failed to comply with its 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'. This suggests that the tribunal's role is merely to ensure that the employer has followed the statutory procedure. The quality of the decision can only be scrutinised in so far as it is based on facts which the employee can show to be 'incorrect'. There is no mechanism for challenging the reasonableness of an employer's decision to refuse a request for flexible working, even where the decision would be regarded as outside the range of reasonable responses, let alone where it is not objectively justifiable.

We support the proposal to introduce a statutory questionnaire procedure in equal pay cases similar to that used in other areas of discrimination. However, we believe that the suggested period for receiving replies (8 weeks) is too long and suggest that a period of 4 weeks be introduced with an option to make an application to a tribunal for an extension of that period up to a maximum of 8 weeks where appropriate.

We argued against the clause that says fixed-term employees will have a right not to be treated less favourably that a comparable permanent employee who does the same or similar work on the grounds that some fixed-term employees would have problems finding comparators and that clause 3(2) of the directive requires a mechanism of comparison that would not leave workers in a situation where no potential comparator was possible. We argued that there should be provision for a hypothetical comparator.

We also argued against the view that the overall package of terms and conditions is not less favourable will be deemed to be a justification for treating a fixed-term worker less favourably. We believe this should be on a term by term basis.

We also believe that successive fixed-term contracts should be limited to a period of two years or below and not four years as the government suggests.

At present there is no obligation on employers to have their own grievance procedure though the vast majority of larger employers do have such procedures. The Bill introduces a statutory grievance procedure which, together with statutory dismissal and disciplinary procedures, will become an implied term of all contracts of employment binding on employers and employees in firms regardless of size.

The Bill also includes powers enabling regulations to be made preventing complaints from being presented to tribunals before part or all of the statutory procedure has been completed. Time limits will be adjusted so as to allow time for claims to be resolved internally.

At present in order to lodge a claim, all applicants have to do is fill in a very basic form or just sent the tribunal a short letter stating the basis of their complaint. Clause 25 of the Bill gives the Minister the right to substitute this with a compulsory form requiring detailed information on the basis of the claim. Many workers will not have this detailed information, particularly with regard to discrimination claims, as it is only when they lodge that they are entitled to the detailed information required.

The new law will also give tribunals the power to make applicants who lose their cases pay compensation, not just for the other side's costs, but also for their preparation time in defending the case.

We have serious reservations about the above and the effect the new powers will have in preventing discrimination claims being pursued by individuals.

ANN HOPE
Advisory Services Officer

4 July 2002

Your Chairperson wrote to the Chairperson of the Committee for Enterprise, Trade and Investment on 18 June seeking the Committee's views on the Employment Bill. The Committee has noted the Correspondence and does not have any views or comments to express at this time.

CATHIE WHITE
Committee Clerk

4 July 2002

1. The Equality Commission welcomes the introduction of the Employment Bill and the opportunity to give evidence to the Committee. The proposed measures as set out in the Bill - extended statutory maternity rights; new statutory paternity leave and pay rights; new statutory adoptive leave and pay rights; and a new statutory flexible-working request right for the parents of young children - are all very welcome indeed. They are important and necessary steps to enable working parents who meet the qualifying conditions to better balance work and family responsibilities.

2. We particularly welcome the Minister's commitment to work/life balance and her recognition, in introducing the Bill, that there is a strong business case for supporting working parents. We have long argued that what is good for the employee is also good for business. Offering flexibility to employees should enable many businesses to operate more flexibly, productively and competitively. However, we do recognise that many of our small businesses need guidance and support to enable them to be family-friendly employers and remain competitive.

3. Many of the areas addressed by the Bill are those about which employers and employees regularly contact us for advice - maternity/paternity rights, flexible working, family-friendly policies. The Bill's provisions will provide clarity in relation to some of these, and they represent a significant step forward in terms of policy development which will put us on a more level playing field with other European states.

4. However, while we broadly welcome the Bill, there are a number of issues which we raised during the various consultations, which the Bill does not appear to address, and there are other areas which are not totally clear at this stage, and we would like to draw these to the Committee's attention.

5. We are concerned that the provisions of this Bill extend only to those working parents who meet the definition of employees. We argued previously that such rights should be afforded to 'workers' and not only 'employees', to encompass groups such as temporary, casual or agency staff and the self-employed. Some of our European employment legislation already provides protection for the broader category of 'worker' (for example, Part-time Workers Directive, Pregnant Workers Directive). Extending family-friendly employment rights to those who meet the employment contract definition of 'worker' would not only provide parity for those currently excluded but also consistency and clarity. Such consistency would help avoid confusion and increased potential for complex litigation.

6. For the most part, it is clear that the Northern Ireland Bill is intended to offer parity with GB in relation to family-friendly employment rights for parents. However, there are some provisions in the GB Bill which are not included in the Northern Ireland Bill. It may be that some of these will automatically apply to Northern Ireland, but it would appear that certain measures require separate legislation, some of which may be brought forward by other government departments and the details of which are not presently available. We would like reassurance that people in Northern Ireland will not be disadvantaged by the more limited coverage of the Northern Ireland Bill.

7. The Commission welcomes, of course, the proposals to extend maternity leave and pay, as outlined in the earlier consultation. The extension of maternity leave, paid at the statutory rate, from 18 to 26 weeks and the extension of unpaid additional leave to those who meet the new qualifying conditions are an improvement on the existing situation. Other proposed changes, such as the simplification of notification procedures, will be welcomed by both women and employers and the proposed new framework will probably prove more manageable for employers. However, many women will not meet the qualifying conditions, for example, if they have changed jobs early in pregnancy, are employed on temporary contracts or are on training programmes. We would wish to see more attention given to those groups which are currently excluded from the statutory maternity pay provisions.

8. We are also concerned that extending unpaid leave or leave, which is paid at a low level of earnings replacement, will not increase significantly the number of women who will be able to take advantage of their new entitlement. Moreover, we had argued in our earlier responses for a more generous integrated maternity and parental leave scheme which would be equally and individually available to both parents as a possible alternative to extended maternity leave. This would give parents more choice about how to manage their leave and would facilitate those fathers who would like to be more involved in their children's care.

9. Since much of the detail of the proposed changes will be introduced by regulations, it is difficult to comment on the specific proposals being brought forward by this Bill.

10. The Commission would like reassurance that the operation of the new framework will be subject to ongoing monitoring and review to evaluate its impact on both women and employers.

11. The Commission is pleased that the Bill includes the new right to leave and pay for adoptive parents. The principle of parity with birth parents is welcome. However, the proposed framework suggested that statutory adoption pay would be at the same flat rate as statutory maternity pay for the whole 26 weeks with no earnings-related element. The rationale for this has not been explained.

12. As with statutory maternity pay, the qualifying service conditions for paid adoption leave will disadvantage some adoptive parents and there appears to be no provision for those who are self-employed, low earners and casual workers. We are also not sure that the exclusion from these new provisions of those who adopt stepchildren or foster children can be justified, even where there is an established relationship.

13. We welcome the principle of making the equivalent of paternity leave and pay available to the second partner of an adoptive couple. However, it is unclear whether this provision is available to a same-sex or unmarried partner on the same basis as for married couples.

14. We warmly welcome the introduction of paid statutory paternity leave for new fathers as outlined in the Bill. This is a significant step which recognises the changing role of fathers in our society. We are disappointed, however, that Statutory Paternity Pay is not linked to earnings, as we believe it may have limited take-up.

15. Once again, the proposal is limited to those who meet the definition of 'employee' and excludes the self-employed, low earners and casual or temporary workers. It is also not clear whether paternity rights will extend to same-sex partners, which we have recommended they should.

16. We are not sure whether the proposal allows for fathers to take two periods of one week instead of a two week block within eight weeks of a child's birth, although we would favour even greater flexibility in how leave is taken.

17. We understand the desire for consistency with maternity provisions in relation to notification procedures, but would be extremely concerned if failure to notify an intention to take leave as early as is proposed would result in forgoing the right. We feel the regulations and guidance in this area should allow for greater flexibility.

18. The Commission welcomes the inclusion of the new statutory right to request flexible working. However, we are concerned that the right extends only to the parents of children under six years old (and 18 in the case of parents of disabled child) and would wish to see it extended to all working parents of children of compulsory school age and parents of disabled children so long as they are dependants.

19. We are also disappointed that the right is only available to parents who meet qualifying service conditions and see no reason why individuals should not be able to negotiate flexible working on taking up a new appointment.

20. The proposed new flexible working right will bring some clarity to an area which currently gives rise to confusion for both employees and employers and which is the subject of many enquiries to the Commission's advice team. However, the potential for confusion remains as women who have caring responsibilities, including those who will not qualify for this new right, will still be able to pursue a complaint of indirect sex discrimination if they cannot meet an employer's requirement to work full-time or inflexibly which is shown to be unjustifiable. We strongly recommend that the effectiveness of the new right is monitored and reviewed so that any adverse impact may be addressed.

21. The Work & Parents Taskforce report strongly advocated that guidance and support be provided to employers and, particularly small employers, to enable them to meet their obligations under the proposed new legislation. We hope that efforts will also be made to inform employees about the right.

22. The original Work and Parents Green Paper addressed the issue of parental leave which is not part of the provisions of this Employment Bill. There would have been merit in addressing parental leave and time off for dependants provisions in an overall package of family friendly employment measures. This Bill, while offering much for many working parents of young children, does not meet the needs of those employees and workers who have other caring responsibilities, eg, the care of elderly relatives.

23. As the Minister has said, this legislation is about helping to create a more flexible labour market which will benefit the economy and society in general. It is about striking a balance between the needs of parents and needs of employers. While we feel that some of the proposals do not go far enough, we nevertheless welcome the Bill. We look forward to seeing the regulations where we hope that some of the issues we have raised will be dealt with in greater detail. And we look forward to further legislative developments in the future which will bring even greater mutual benefit to employers and workers

JOAN HARBINSON
Chief Commissioner.

WRITTEN SUBMISSION BY:
Minister for Employment and Learning

11 July 2002

Thank you for your letter of 28 June 2002. I am pleased that you found the evidence session with my officials helpful.

Responses to the questions outlined in your letter are set out in the attached paper. As you know, the timescales for processing the Bill and the necessary subordinate legislation are very tight. My officials will therefore be pleased to assist in the early resolution of any other queries that are raised during the Committee's scrutiny of the Bill.

MRS CARMEL HANNA MLA
Minister for Employment and Learning

(Approved by the Minister and signed in her absence)

• What rights will she have regarding maternity leave and pay at this point?
• What rights will her employer have at this point?
• Would a woman who:

• (a) adopts a child at some point during or at the end of her maternity leave, or
• (b) gives birth during or at the end of a period of adoption leave, be treated in the same way as a woman in the original example?

The extension of maternity leave and the new rights to paternity and adoption leave will make new combinations of leave possible for the first time, potentially resulting in lengthy consecutive periods of leave.

In the case of a woman who gives birth twice within one year (possible, although relatively infrequent), her rights to take maternity leave and pay for the second pregnancy will be determined as they are for the first pregnancy. This means that such a woman who takes ordinary maternity leave followed by additional maternity leave for her first pregnancy, will then be entitled to a second period of ordinary maternity leave and additional maternity leave in relation to her second pregnancy (as her contract of employment continues during periods of leave).

If the woman qualified for Statutory Maternity Pay (SMP) for her first pregnancy, she might qualify for SMP for her second pregnancy, but it is more likely she would qualify for a second period of SMP, or alternatively MA, would depend on the woman's individual circumstances - for example, the timing of her first SMP period, the date of the second birth, her work pattern prior to the first pregnancy, and whether she was getting any contractual remuneration from her employer during her additional maternity leave. If she did not qualify for SMP or MA, she might still be entitled to Incapacity Benefit for part or all of the maternity pay period.

The employer of a woman in such cases would have the same right to notice of the woman's plans to take maternity leave and return to work in relation to her second pregnancy as he did for her first pregnancy. However, it might not be reasonable to expect an employer to be able to meet the requirement for a woman to retain the right to return to her identical job after a period of ordinary maternity leave when this follows a lengthy consecutive period of leave. Instead, it might be more appropriate for an employee to have the right to return to the same job, or if that is not reasonably practicable, an appropriate alternative job - the same right as currently applies for return following additional maternity leave.

The principles surrounding two consecutive periods of maternity leave and pay apply equally to two consecutive periods of adoption leave and pay or consecutive periods of leave involving both maternity and adoption leave and pay (although these will be rare occurrences).

The intention is for the new payments to be taxable. Clause 35 of the Finance Bill, currently under consideration by the UK Parliament, makes the necessary amendments to the Income and Corporation Taxes Act 1988.

At present, during her ordinary maternity leave period a woman is entitled to receive all the benefits provided for in her contract of employment except for her wages - this means that any holiday entitlement provided for in the contract will continue to accrue during additional maternity leave. Under the Working Time Regulations (WTR), a woman is entitled to 4 weeks' paid annual leave; this entitlement is not reduced on account of ordinary or additional maternity leave. Under the WTR, annual leave must be taken within the leave year and cannot be carried over into the new leave year.

The permutations of different leave entitlements are being reviewed. The whole issue of accrual of annual leave during extended periods of absence will be looked at to ensure current annual leave entitlements do not give rise to unintended consequences. As part of this review, consideration will be given to the relationship between annual leave and periods of additional maternity leave.

Statutory Maternity Pay (SMP) is typically calculated on the basis of earnings received over an 8-week period running into the 15th week before the baby is due. As a result, if a pay rise takes effect while the woman is actually in receipt of SMP or Maternity Allowance, it will not affect her entitlement to maternity pay because the change in earnings does not occur during the relevant 8 week period. However, if a woman receives a backdated pay rise which retrospectively increases the amount of earnings already paid in the relevant period used to calculate SMP, then the employer must re-calculate the SMP due as if the pay had been given on the date it was due.

Of course, when a mother returns to work from maternity leave, she is entitled to return on the same terms and conditions of employment as if she had not been absent.

13 August 2002

NIC.ICTU believes the legislation should be amended to apply to all workers and not just to 'employees'. Many of those who could most benefit from the new rights will not fit into the legal definition of employee.

NIC.ICTU recommends that the main carer in an adoption situation be eligible for earnings replacement for adoption pay in order to encourage parents to adopt whilst maintaining their position in the labour market.

There should be no service qualification requirement for leave for either the main carer or their partner especially as ordinary maternity leave does not have a service qualification attached to it.

There should be an Adoption Allowance scheme similar to the Maternity Allowance scheme for adopters earning under the Lower Earnings Limit.

Statistics show that a substantial number of those giving birth are young single mothers whose support around the time of birth comes not from the father of the child but from other family members. We believe the legislation should be amended to extend the right to leave to those who will have close contact with the mother and baby around the time of birth.

There should be no service qualification requirement for paternity leave especially as ordinary maternity leave does not have a service qualification attached to it.

The legislation should be amended to allow for leave to be taken in days at a time or on a part-time basis.

There should be a Paternity Allowance scheme similar to the Maternity Allowance scheme for those earning below the Lower Earnings Limit.

The legislation should be amended to allow for earnings replacement for maternity pay. NIC.ICTU believe this is an area where 'limited universalism' is fully justified in the interests of the health and welfare of all working women and their babies and the protection of labour market participation of women.

There should be no qualifying service condition for entitlement to additional maternity leave.

We believe the sickness trigger should be abolished.

NIC.ICTU disagrees that six years be the cut-off age after which parents have no absolute right to request flexible working. The key issues should be the needs of the child and the family and not an artificial age barrier and we recommend that the legislation be amended to take this into account.

ANN HOPE
Advisory Services Officer

27 August 2002

Further to your letter concerning the above Bill and our amendments.

As we outlined to the committee, the Bill needs to give greater focus to the problems that SME's face and recognise the difference between big and small businesses. As this problem impacts on many aspects of the bill, we would like the department to examine the relevant clauses and to 'SME proof ' them.

We would recognise that this would require restructuring of the Bill.

One specific area is highlighted in Section 112F on flexible working - a clause could be inserted that this will only apply if the employer employs over a certain amount of people.

We would also like to see a clearer section in the Bill as to how employers are able to claim back administration costs and to give recognition to problems faced by the self-employed. The bill has little of no mention of the self-employed.

While I know you would have liked us to be make more specific amendments, but if the bill gave more focus to the areas that we highlighted, it would require considerable change, beyond that of a number of amendments.

I hope this has been of help to you

WILFRED MITCHELL
Policy Chairman

30 August 2002

1 The Equality Commission was pleased to give evidence to the Committee on 4 July 2002. Now that draft regulations in support of the proposed Employment Bill have been published, we reiterate our key concerns in relation to measures proposed.

The Commission proposes that, in each provision in the Bill setting out rights of those in employment relationships, the words 'employee' or 'employees' should be replaced with the words 'worker' or 'workers', based on the definition of 'worker' already set out in the Employment Rights (Northern Ireland) Order 1996ⁱ.

The Commission recommends that statutory maternity pay provisions are extended to those currently excluded by qualifying conditions in relation to length of service or earnings.

We recommend that the current service requirement for entitlement to additional maternity leave should be removed.

We would prefer to see an extension of the earnings-related element of statutory maternity pay and are concerned that extending unpaid leave, or leave which is paid at a low level of earnings replacement, will not increase significantly the number of women who will be able to take advantage of their new entitlement. We had argued in our earlier responses for an integrated maternity and parental leave scheme which would be equally and individually available to both parents as a possible alternative to extended maternity leave. This would give parents more choice about how to manage their leave and would facilitate those fathers who would like to be more involved in their children's care.

We recommend that the statutory adoption pay proposed should include the same earnings-related element as statutory maternity pay.

We recommend that the provisions are extended to those who are currently excluded on the basis of qualifying service conditions, earnings or employment status.

We recommend that provision is made for those who do not meet the proposed qualifying conditions in relation to service, earnings and employment status.

We recommend that the Bill allows for greater flexibility in the way paternity leave is taken. The regulations appear to suggest that paternity leave can only be taken as a two-week block, with the option to take just one week. We would prefer that it could be taken as two separate weeks, or even more flexibly.

We recommend that the proposed right to request flexible working be extended to all working parents of children under compulsory school age and parents of disabled children so long as they are dependants.

We recommend that the qualifying service conditions are removed and that working parents are able to negotiate flexible working on taking up a new appointment.

We recommend that the Bill makes provision for workers who may have other caring responsibilities, for example, elderly relatives or relatives with disabilities.

JOHN HARBINSON
Chief Commissioner

The Commission is concerned that the 'family-friendly' rights included in the Bill are restricted in their scope to 'employees', rather than the wider category of 'workers'.

The Bill proposes to amend the Employment Rights (Northern Ireland) Order 1996. Throughout the Bill, reference is made to the rights of 'employees'. This is consistent with many, but not all, of the provisions of the 1996 Order. While the provisions in Part IX of the Order (Maternity Rights), which are to be amended, apply to 'employees', the provisions of Part III of the Order (Protection of Wages) apply to the wider category of 'workers'.

In the Order, 'employee' means "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment." 'Worker' means "an individual who has entered into or works under (or, where employment has ceased, worked under) -

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual."

The concept of an 'employee' is based on a contractual test which can, on occasions, be narrowly interpreted in the tribunals and court. For example, casual workers can be excluded from employment protection, as can home-workers and 'on-call' workers. There is therefore a wide range of employment relationships, many of which have evolved over the past two decades, which will not necessarily come within the concept of 'employee', although the workers involved may well not be seen as 'being in business on their own account'. The advantage of the concept of 'worker' is that it includes many of these 'grey area' employment relationships, in which the worker is clearly in a subservient, and frequently vulnerable, relationship with the employer, but still excludes the genuinely self-employed.

The Commission is of the view that there is a preponderance of women amongst those working in many of these 'grey area' relationships. The Commission would have also wished that the Department for Employment and Learning's equality impact assessment on the Bill had included an assessment of the effect of restricting the scope of the Bill to 'employees' as opposed to 'workers' in relation to religious belief and political opinion, racial and ethnic origin, disability and those with and without dependants. In relation to the policy of Targeting Social Need, the Commission is concerned that the failure to apply the provisions of the Bill to 'workers' may exclude socially vulnerable workers from the protection of these 'family-friendly' provisions.

There are various examples of employment laws being applied to 'workers', rather than merely to 'employees'. A range of EU employment directives, particularly in the field of health and safety, apply to 'workers'. Indeed, the Pregnant Workers Directive 1992, as 'health and safety' measure, applies to 'pregnant workers', rather than 'pregnant employees'. Nonetheless, maternity leave and pay in the law of Northern Ireland has only ever been applied to 'employees'. The Commission proposes that the Assembly should take this opportunity of the amendment of the law on maternity leave and pay to broaden its scope to include those whom the Pregnant Workers Directive was originally intended to protect and also to broaden the scope of the related 'family-friendly' policies in the Bill to 'workers' also.

The Commission also points out that other statutory provisions, which are closely related to the provisions of this Bill, apply to 'workers'. For example, this Bill contains a range of measures relating to leave. As an EU 'health and safety' measure, the Working Time Directive and the implementing Working Time Regulations, which apply to questions of annual leave, apply to 'workers'. So also, in relation to the provisions of the Bill which apply to pay, the National Minimum Wage Act applies to 'workers', as do the 'Protection of Wages' provisions already referred to in the Employment Rights Order.

In Great Britain, the Department of Trade and Industry has recently issued a Discussion Paper On Employment Status And Statutory Rights which considers the extension of employment rights to those other than 'employees'. The Commission proposes that the Assembly should take this opportunity to develop a coherent, consistent and socially inclusive system of employment law in Northern Ireland by ensuring that the valuable protection of these 'family-friendly' rights should apply to the wider category of 'workers' rather than merely 'employees'. The Commission accepts that this amendment will involve consequential amendments to details of the Bill but points out that there are precedents for such consequential amendments in other areas of employment law which apply to 'workers' rather than 'employees'.

The Commission therefore proposes that, in each provision in the Bill setting out rights of those in employment relationships, the words 'employee' or 'employees' should be replaced with the words 'worker' or 'workers', based on the definition of 'worker' already set out in the Employment Rights (Northern Ireland) Order 1996.

30 August 2002

1. Paternity leave and paternity pay is to be available to persons who satisfy certain conditions namely:

• 26 weeks continuous employment with the same employer
• have a relationship with the child and its mother i.e. will be parenting the child
• Must have or expect to have responsibility for the upbringing of the child
• Must be the biological father of child, or married to or partner of the mother. (Partner is defined as a person living with the mother in an enduring family relationship, but not a blood relative)

2. The leave is for 2 weeks, whether one or more children are born of the same pregnancy.

3. Either one single week, or one block of 2 consecutive weeks (Consideration is currently being given to whether 2 separate blocks of 1 week each would be more convenient for both parties)

4. Leave can be taken within 8 weeks (56 days) beginning with either the child's birth date, or the first day of the week when the child is expected to be born. This is to ensure that when a child is born very prematurely, and remains in hospital throughout the 56 days (or longer), when the leave would in normal circumstances have been taken, the parent will have 56 days from the date the child was expected to be born on, to take the 2 weeks leave.

5. In the case of a child expected to be born in the week beginning 6th April 2003, but who is in fact born prematurely, the parent should be entitled to take the leave at any time from the date the child is actually born. Such premature births i.e. births expected on week beginning 6th April 2003, could occur as soon as late November 2002. However in Northern Ireland, neither the primary legislation, nor the Regulations providing detail of the conditions of leave entitlement etc. and the arrangements for reimbursement of employers national insurance contributions, will have been passed in sufficient time to provide those parents with the statutory entitlement. Northern Ireland is actually 6 months behind GB in terms of making legislative provision, and must make up that time to arrive at the finishing line at the same time as GB. This points up the need for Royal assent to be obtained and Regulations made as soon as possible. In Great Britain, the Employment Act has received Royal Assent, and Regulations are being processed as quickly as possible to minimise the period of time when parents of children born prematurely will not be able to avail of their statutory right.

6. Having said that, the numbers of premature births are not expected to be high.

7. In the case of a "stillborn" child, the leave is available if the pregnancy has run 24 weeks. Also the leave continues to run even should the child die during the leave period.

8. A person wanting to take paternity leave must give notice of their intention to take paternity leave in or before the 15th week before the expected week of confinement, or where this is not reasonably practicable, as soon as is reasonably practicable.

9. If after providing the notice, the employee changes their mind about when they want to start the leave or the amount of leave, they must give 28 days notice of the change, or again where this is not reasonably practicable, as soon as is reasonably practicable.

10. The rate of paternity pay will be set out in Regulations. The weekly rate is to be the smaller of the following 2 amounts:

• £100, or
• 90% of the employee's normal weekly earnings

11. Employees who earn less than the lower earnings limit are excluded from the right to receive statutory paternity pay. However in such cases employees will be able to claim income support for the one or two weeks' leave period.

WILLIAM CALDWELL
Employment Bill Team Leader, DEL.

4 September 2002

You will be aware that Committee stage of the Employment Bill is due to end on 20^th September 2002. I would be grateful to receive a copy of your Report as soon as possible, even if only initially in typescript form.

I am writing to inform you that it is my intention at Consideration stage to table two amendments to the Bill. These amendments are straightforward but nevertheless add important aspects to the Bill's content.

The first amendment relates to the right to request flexible working and its application to members of the Armed forces. Following a request from the Minister of State For the Armed Forces for an exemption to apply as regards the Armed Forces, I have accepted that it would be impractical for members of serving Armed Forces to have a right to request flexible working arrangements. I have decided therefore to table an amendment at Consideration stage to exempt members of serving armed forces from the flexible working provisions.

The second amendment also relates to the right to request flexible working. In the event of a dispute arising between employer and employee as to how the request is handled, it would be helpful for the binding arbitration scheme operated by the Labour Relations Agency to be available, to ensure that as few cases as possible are lodged with the already heavily burdened industrial tribunal system. I propose therefore to table an amendment to this effect at Consideration stage.

These two amendments bring the Employment Bill into line with the Employment Act in Great Britain.

MRS CARMEL HANNA MLA
Minister for Employment and Learning

9 September 2002

A1. The Commission is proposing the Employment Rights (NI) Order (ERO) definition of workers given that:

(1) the Employment Bill is amending the ERO - the definition is already there;

(2) the ERO is a consolidation Order;

(3) we are not aware of any variations in the definition of worker in either individual employment or collective labour law

In our submission of 4 July, we noted the close links between the rights in the Working Time Regulations and the National Minimum Wage Act and those covered by the Employment Bill (ie, issues relating to pay and leave). In this context, we would welcome the utilisation of the worker definition as in the National Minimum Wage Act because it includes agency workers and certain categories of home worker. It is essential that these categories are included as they are likely to include high proportions of disadvantaged groups - women, ethnic minorities and people with disabilities.

A2a DTI research (see Discussion document on employment status in relation to statutory employment rights) suggests that adopting the definition of worker would increase the numbers covered by employment rights by 5%. We have no Northern Ireland specific statistics.

A2b Again, the DTI document outlines a number of categories of working person which include homeworkers, agency workers, casual workers, labour-only subcontractors, office holders (eg, clergy, police officers, company directors, prison officers, club secretaries, etc).

We acknowledge that there are logistical difficulties in extending protection to those involved in triangular relationships, eg, agency workers and certain categories of homeworker, but these appear to have been overcome in relation to the Working Time Regulations and the National Minimum Wage legislation.

A3. The purpose of the worker definition is to exclude the genuinely self-employed (ie, those genuinely in business on their own account). There could be a sub-category, the dependant self-employed, eg, a consultant who could become dependant on one contract but this dependant-self-employed category could be covered by the worker definition. In any case, we are not convinced that there is a particular equality issue in relation to this category.

In relation to the provisions of the Employment Bill, the genuinely self-employed can make decisions about taking leave, working flexibly, etc. However, the Commission would welcome the extension of 'family-friendly' leave paid at a higher level of income replacement for all workers, which would include the self-employed, so that individuals are not disadvantaged by availing of such leave.

A4. As the intended impact of adopting the worker definition is to include a wider range of disadvantaged groups, we cannot see the potential for discriminatory or quality implications.

A5. We have not had sufficient opportunity to fully consider the issue of legal definition of children but one thought which springs to mind is that in some EU law, eg, the Free Movement of Workers Council Regulation (EEC) 1612/68 uses the concept of 'descendant', ie, those who are under 21 years of age or who are dependants. There may be some merit in further exploring/considering this concept.

I hope this is of some help. The DTI discussion document which I referred to earlier includes a good analysis of many of the issues the Committee is raising.

12 September 2002

Thank you for your letter of 9th September 2002 in which you outlined a number of outstanding queries in relation to the Employment Bill. I have set out my response to each of these in Annex A attached.

You raise the issue of what can be done for eligible parents whose children will be born before the Regulations to implement the Bill come into operation in early 2003. The enclosed paper outlines two approaches to this problem under consideration by my Department. Clearly it is preferable that we ensure that the number of parents affected is kept to a minimum by processing the Bill and Regulations as swiftly as possible.

I can understand the desire of the Committee to ensure that employment rights apply across the board and that no worker should be left out. However I have set out in some detail the Department's reasons for limiting the provisions of the Employment Bill to 'employees' rather than 'workers'. I hope, when you have considered the points made, that you will agree with me that it would not be practicable to do otherwise. I do not of course rule out the need in the future to consider providing employment rights to additional classes of workers, following consideration of the outcome of the ongoing employment status review. Indeed the Employment Bill provides a power for such rights to be given by secondary legislation, should the need arise.

I feel strongly that it is important that the Bill proceeds as rapidly as possible through the Assembly. In so doing important employment rights will be introduced in Northern Ireland, contributing much to the improvement of the lot of working parents.

CARMEL HANNA MLA
Minister for Employment and Learning

Yes.

All serving members of the Armed Forces are liable to be deployed operationally at little or no notice, if national interests require it. This unique feature of service life makes it impractical to apply long-term flexible working arrangements without there being a detrimental impact on operational effectiveness.

Within the emergency services such as the Fire Service and the Ambulance Service, however, normal patterns of shift cover operate. Whilst it may not be possible for all those involved in e.g. the Ambulance Service to adopt a flexible working pattern, it is not appropriate to exclude all such employees automatically. There has not been any suggestion of a need for an exemption for the emergency services, nor has a request for an exemption been received.

The flexible working provisions were developed as the result of extensive consultation on potential means of support for working parents. They do not stem from any kind of European initiative. Individual EU nations each have their own arrangements regarding work and parenting. Detailed information on provision and exemptions in other European nations is not readily available.

No.

In the main, the framework of employment law both in GB and NI is designed to apply individual rights to "employees", not "workers". (There are exceptions to this such as the Working Time Regulations, the National Minimum Wage Act and the Part-time Work Regulations.) For example, maternity rights in the Employment Rights (NI) Order 1996 apply to "employees". And major sections in the Employment Bill insert new provisions in the 1996 Order, or amend existing provisions in that Order. Therefore it would not be possible to insert provisions into that Order which are incompatible with it, by using the term "worker" instead of "employee".

The Employment Bill as drafted confers rights such as "paternity pay" and "adoption pay" on "employees". This is similar to the right to "maternity pay" which is conferred to employees by Social Security legislation. It would be extremely odd for DEL to confer the right to "paternity pay" to a different class of person than those receiving maternity pay. Also law that would confer rights on a class of person that could not be clearly defined, would be bad law, and confusion and uncertainty would result for all concerned.

There are legal complexities surrounding what constitutes an "employee" as opposed to a "worker". An employee for employment law purposes is deemed to be anyone working under a contract of service or an apprentice worker. A "worker" includes all employees plus those engaged under a contract for service. Case law has even been developed to rule on whether or not a person is an "employee". What is clear, however, is that no certainty currently exists as to what constitutes a "worker" and what employment rights "workers" may or may not have. This is why there is an ongoing review of employment status being conducted by the Department of Trade and Industry in GB. A discussion paper on this issue has been issued within Northern Ireland for comment, and the Department will be considering the implications for NI. Furthermore, there is a power in the Employment Bill to extend rights to additional groups of people, should it be found sometime after the employment status review that it is appropriate so to do.

If the term "worker" were used in the Bill instead of "employee", it is estimated that about 5% of persons in employment could potentially be included in the group of persons to whom the new rights would be applied. In NI this amounts to some 36,000 people. However, only a small proportion of these persons could satisfy the conditions of entitlement such as having 26 weeks' continuous employment with the employer, or being parents of children of the appropriate age. So the actual number which would gain access to the new rights if "worker" were used instead of "employee" is likely to be very small. However, as mentioned above, this would be technically extremely complex, perhaps indeed impossible. To attempt to do it would certainly remove any possibility of the Bill being enacted by April 2003. The result would be that employees - well over 95% of potential beneficiaries - would not receive the new rights at the same time as their GB counterparts; and the delay would be likely to be very lengthy.

The system being introduced in relation to maternity leave, adoption leave and pay and paternity leave and pay requires administrative input from employers in relation to their employees. They need to have the employees on their payroll and to administer National Insurance contributions and income tax deductions. All "employees" fall into this category, but not all "workers". Administratively therefore it is difficult to envisage how it could work in practice in respect of "workers", some of whom may not actually be paid by the employer.

The consultation process undergone in Northern Ireland took place on the basis of the new proposed rights applying to "employees". The new rights impose an administrative burden on business but are as "light touch" as possible. These are judged to be reasonable in terms of implementing the policy need to improve the lot of parents of young children who have to juggle employment with parenting responsibilities. To widen the scope to include "workers" could tip the fine balance of administrative burdens against employers and would not be well received by the business community. Indeed, such a change should be the subject of further consultation, certainly with the business community.

The new rights are partly to help people cope with parenting young children, but must also be viewed as stemming from the relationship that is established between employer and employee. The employer creates the conditions whereby the employee can avail of the right, in the real expectation that the employee will return to employment when leave is completed, and will be more content and less stressed in the knowledge that parenting issues are catered for. Such a relationship would not necessarily exist between employer and "worker", given that those "workers" who are not "employees" are often casual workers, or agency workers or subcontracting staff. It would be unfair, therefore, to expect employers to make the administrative arrangements for workers with whom they may not have that employer/employee relationship.

The rights to adoption leave and adoption pay may be exercised by eligible adopting parents from the day the child comes to live with them and not from the date of the official transfer of guardianship (which usually takes place a year later). In other words, eligible parents of newly adopted children are fully entitled to take paid adoption leave during the trial periods of adoption proceedings.

Whilst it is difficult to obtain accurate and relevant statistics in this regard, figures provided by the Department of Health and Social Services and Public Safety indicate that there are approximately 7,000 children under the age of 18 with disabilities in Northern Ireland. It is estimated that some 14,000 adults with some kind of disability are aged between 18 and 44, and might therefore benefit from their parents having access to flexible working. In practice, of course, it is unlikely that very many of these would require parental care.

The right to flexible working has been limited in this way because the Bill's measures are aimed exclusively at supporting working parents of children. Whilst a parent's responsibilities towards a disabled child do not end when that child reaches 18, the parent in this case is in a similar position to others who care for adult relatives. Whilst the Department recognises that such individuals have particular needs, support for carers lies outside the scope of the Employment Bill and the consultation process which informed its content.

Whilst it may be technically possible to change the title of a Bill at this stage, it is not appropriate. It is not necessary for a Bill's title to reflect its detailed content, rather it is the norm for them to have generic titles. This is particularly appropriate in the case of the Employment Bill, as it largely inserts provisions in other existing Orders such as the Employment Rights (Northern Ireland) Order 1996, and the Social Security Contributions and Benefits (Northern Ireland) Act 1992. Furthermore, a generic title ensures that the name of the eventual Act does not become obsolete if the content of the Act is changed in the future.

Instead, more detailed designation is generally reserved for the Regulations, which will give detailed effect to the Bill's provisions. Also the Bill will be used primarily by legal personnel, for whom it is more straightforward if the NI Bill has the same name as its GB counterpart.

As stated above, the earliest expected date for the Bill to receive Royal Assent is December 2002. It is planned to lay the Regulations to implement the Bill's provisions as quickly as possible thereafter, perhaps in early January. These Regulations will be subject to either the confirmatory or the negative procedure before the Assembly. This should allow them to be brought into operation within 21 days of being laid, i.e. by early February.

Based on figures provided by the Department of Health, Social Services and Public Safety, it is estimated that approximately 1,000 babies due to be born after 6th April 2003 will be born before the Regulations would come into operation in early February.

The Department is considering how employers might be encouraged to honour the spirit of the legislation by allowing those employees, whose children are expected to be born after 6 April 2003, to take paid leave where their child is born prior to the Regulations coming into effect. The Inland Revenue has been approached regarding the possibility of making discretionary reimbursements to such employers.

In addition, the Department is in consultation with its legal advisers regarding the possibility of allowing eligible parents, whose children are born prematurely, to take their paid leave at a later date, following the implementation of the Regulations.

i An Explanatory Note on this recommendation is appended to this paper.

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