REPORT ON THE EMPLOYMENT BILL

(NIA Bill 11/01)

SESSION 2002/2003 FIRST REPORT

Ordered by the Committee for Employment and Learning to be printed 26 September 2002
Report: 1/02R (Committee for Employment and Learning)

COMMITTEE FOR EMPLOYMENT AND LEARNING
TOGETHER WITH THE MINUTES OF PROCEEDINGS RELATING TO THE REPORT, MINUTES
OF EVIDENCE, AND WRITTEN EVIDENCE SUBMITTED TO THE COMMITTEE

The Committee for Employment and Learning is a Statutory Departmental Committee of the Northern Ireland Assembly established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Standing Orders 44 - 46 of the Northern Ireland Assembly. The Committee has a scrutiny, policy development and consultation role with respect to the Department for Employment and Learning and has a role in the initiation of legislation.

The Committee has power:

• to consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
• to approve relevant secondary legislation and take the Committee stage of relevant primary legislation;
• to call for persons and papers;
• to initiate inquiries and make reports; and
• to consider and advise on matters brought to the Committee by the Minister for Employment and Learning.

The Committee is appointed at the start of every Assembly, and has power to send for persons and papers and records that are relevant to its inquiries.

The Committee has 11 members, including a Chairperson and Deputy Chairperson, and a quorum of 5. The membership of the Committee at 26 September 2002 was:

Dr Esmond Birnie (Chairperson)
Mr Mervyn Carrick (Deputy Chairperson)

¹ Mrs Joan Carson replaced Rev Robert Coulter on 11 September 2000.
² Dr Ian Adamson replaced Mr Roy Beggs on 15 April 2002.
³ Mr Arthur Doherty replaced Mr Joe Byrne on 20 May 2002.
⁴ Mr David Hilditch replaced Mr William Hay on 27 May 2002.
⁵ Ms Michelle Gildernew replaced Mrs Mary Nelis on 1 July 2002.
⁶ Mr Barry McElduff replaced Mr John Kelly on 1 July 2002.
⁷ Mr Michael Coyle replaced Mr Arthur Doherty on 16 September 2002

The Department for Employment and Learning Act (Northern Ireland) 2001 received Royal Assent on 20 July 2001 and made provision for the Department of Higher and Further Education, Training and Employment to be renamed the Department for Employment and Learning. Accordingly, the Statutory Committee was renamed the Committee for Employment and Learning.

Reports and evidence of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Assembly's website: (archive.niassembly.gov.uk).

All correspondence should be addressed to the Clerk to the Committee for Employment and Learning, Northern Ireland Assembly, Room 283, Parliament Buildings, Stormont, Belfast, BT4 3XX.

( (028) 9052 1272: Ê: (028) 9052 1433 : e-mail: cel@niassembly.gov.uk

Executive Summary

Purpose
Key Points

Introduction

Extension of the Committee Stage

Consideration of the Evidence on the Bill

Clause-by-clause Deliberation

Recommendations

Appendix 1: Minutes of Proceedings relating to the Report

Appendix 2: Minutes of Evidence

Federation of Small Businesses - 13 June 2002

NICICTU - 20 June 2002

DEL Officials - 27 June 2002

Equality Commission for Northern Ireland - 4 July 2002

DEL Officials - 5 September 2002

Committee clause-by-clause scrutiny - 12 September 2002

Appendix 3: Written Evidence submitted to the Committee

Federation of Small Businesses - 10 June 2002

NICICTU - 20 June 2002

Committee for Enterprise, Trade and Investment - 4 July 2002

Equality Commission for Northern Ireland - 4 July 2002

DEL response to questions raised by members - 11 July 2002

NICICTU recommendations for amendments - 13 August 2002

Federation of Small Businesses recommendations for amendments - 27 August 2002

Equality Commission recommendations for amendments - 30 August 2002

DEL pre-term births - 30 August 2002

DEL proposed amendments by the Minister at Consideration Stage - 4 September 2002

Equality Commission use of term 'worker' in legislation - 9 September 2002

DEL response to various issues by members - 12 September 2002

EMPLOYMENT BILL (NIA 11/01)

1. The purpose of this Report is to bring into the public domain the Committee for Employment and Learning's consideration of the Employment Bill being sponsored by the Department for Employment and Learning (DEL). This Report aims to accurately portray the full and fair consideration that was brought to bear, by members of the Committee, in their deliberations on the Employment Bill during Committee Stage.

2. The Employment Bill was welcomed by the Committee for Employment and Learning in light of the provisions contained therein:

• Extension of maternity leave.
• New rights on adoption and paternity leave and pay.
• Obligation on employers to seriously consider requests from parents of young children to work flexible hours.

3. Members sought a balanced range of views as part of their deliberations on the Employment Bill and requested evidence from a number of organisations as well as from officials from DEL. Requests for written submissions were also requested from the following Assembly Committees;

• Committee for Enterprise, Trade and Investment
• Committee for Finance and Personnel
• Committee for Health, Social Services and Public Safety
• Committee for Social Development

4. The views of the impact on employers, of provisions in the Employment Bill, were sought from the Federation of Small Businesses while the likely impact for 'employees' was sought from the Northern Ireland Committee - Irish Congress of Trade Unions. Issues arising from these two evidence sessions held in Parliament Buildings, as well as members' own concerns, were raised with departmental officials who were invited to give evidence to the Committee on the Employment Bill. The views of the Equality Commission for Northern Ireland were also sought in order to determine what potential equality and discriminatory issues that might arise from this legislation.

5. A recurring point of issue amongst members was in regard to the widening of eligibility, so that as many people as possible could gain access to the benefits provided for in the Employment Bill. Possible amendments considered by members included the extension of the right to request flexible working to be extended to those with other caring responsibilities, such as elderly parents, as well as the removal of the age barrier of six years, above which working parents of children would not be permitted to request flexible working hours from their employers. Similarly, consideration was given to removing the age restriction (18) on the right to request flexible working by parents of disabled children.

6. During their consideration of the Employment Bill, some members of the Committee did see positive merit in an amendment of the definition of those who could benefit from the enhanced rights included in the Bill. This was agreed in principle by suggesting that 'worker' replace the word 'employee' where relevant in each clause and schedule of the legislation. This would result in a widening of the scope of the Bill, estimated (assuming certain statistical relations in Northern Ireland would be the same as the UK average) at an additional 5% more people who could be eligible for these benefits.

7. However, as a result of further evidence presented to the Committee, the view was taken that such a change, whatever its attractiveness or otherwise in principle, would not be practicable at this time. The Committee agreed that such changes raised a very real prospect of not only delaying the progress of the Bill but could indeed result in the Bill not receiving Royal Assent and thus denying a considerable number of the workforce from access to any of these new rights at the same time as their Great Britain counterparts.

8. The Committee did, however, affirm its intention to further pursue the matter of clarifying the legal status of 'workers' in the workforce and to debate widely on the employment rights that should be available to all categories that fall under this general term. The introduction of two policy documents by DEL, Employment Status in Relation to Statutory Employment Rights and EU Commission Proposal for a directive on Working Conditions for Temporary Agency Workers, were seen as areas where the Committee should make a full and detailed input into this wider discussion on the rights of 'workers'. It was also agreed that a consistent and uniform definition across all legislation would be a more effective way forward and a major policy decision. Furthermore, a wider consultation was required on this major issue before a final decision is taken.

9. The purpose of this Report is to bring into the public domain the Committee for Employment and Learning's consideration of the Employment Bill being sponsored by the Department for Employment and Learning (DEL). This Report aims to accurately portray the full and fair consideration that was brought to bear, by members of the Committee, in their deliberations on the Employment Bill during Committee Stage

10. The Employment Bill was referred to the Committee for Employment and Learning for consideration in accordance with Assembly Standing Order 31(1) on completion of the Second Stage of the Bill on 5th June 2002.

11. The Minister for Employment and Learning made the following statement under section 9 of the Northern Ireland Act 1998:

12. The measures within the Northern Ireland (NI) Employment Bill mirror the working parents provisions within the Great Britain (GB) Employment Act 2002. The GB Employment Act received Royal Assent on 8th July 2002 and covered the main areas of paternity and adoption leave and pay, maternity leave and pay, flexible working, employment tribunal reform and resolving disputes between employers and employees.

13. In GB, a review of maternity and parental rights was launched in the early summer of 2000 and its terms of reference were to:

This review led to the publication of the Green Paper 'Work and Parents: Competitiveness and Choice' in December 2000 by the Department of Trade and Industry (DTI) and the subsequent consultation period continued until early March 2001. In light of the results arising from the consultation it was announced in the Chancellor's Budget Statement on 7 March 2001 that extensions to maternity and parental rights would be provided and all measures were to be implemented from 2003. The DTI subsequently produced 3 framework documents in May 2001 for consultation on the new options for maternity, paternity and adoption leave and pay. They also commissioned a high-level taskforce to consider the introduction of flexible working arrangements for parents of young children. Proposals emerging from these exercises led to the shaping of the provisions included in the GB Employment Act 2002.

14. In Northern Ireland, DEL issued similar consultation exercises as those outlined above. This process also confirmed support for the introduction of new and additional rights to facilitate a greater choice and flexibility for parents between family and work commitments.

15. The NI Employment Bill includes:-

(i) The right to 2 weeks paid paternity leave around the time of birth or the placement of a child newly-placed for adoption. Statutory Paternity Pay (SPP) will be at the same standard rate as Statutory Maternity Pay (SMP).

(ii) Adoption leave for parents adopting a child newly placed with them. As far as practical, provisions for adoption leave will mirror provisions for maternity leave. Statutory Adoption Pay (SAP) will be for the same period of time as Statutory Maternity Pay (SMP) and will be paid at the same standard rate.

(iii) Amendments to existing legislation to improve maternity rights - the right to 26 weeks ordinary maternity leave (paid) and 26 weeks additional maternity leave (unpaid) to expectant mothers.

(iv) A duty on employers to seriously consider requests from parents of young children to work flexible hours.

16. Other related measures corresponding to Social Security provisions in the GB Employment Act, such as arrangements for revised maternity pay, will be taken forward by the Department for Social Development.

17. The provisions detailed in both the GB Employment Act 2002 and the NI Employment Bill are intended to come into force on 6 April 2003.

18. On 5 September 2002 the Committee agreed a motion to request that the Committee Stage of the Employment Bill should be extended to 18 October 2002 to ensure due and proper consideration in relation to the possible amendments to be made to the Bill. The Committee agreed the following motion seeking an extension to the Committee Stage of the Bill.

This motion was tabled on the understanding that the period of extension would only be used if absolutely necessary. Departmental officials had previously advised the Committee that the progress of the Employment Bill through the various stages in the Assembly, would need to comply with stringent deadlines to ensure that the legislation could come into effect on the required date.

19. Members were advised to consider the following suggested timetable for progress of the Bill in the Assembly subject to any decision to further extend the period of scrutiny of the Committee Stage:

• Consideration Stage of the Bill would need to take place in October 2002.
• The Bill would need to receive Royal Assent by early-January 2003 although it would be preferable if this took place in December 2002.

This timetable would enable the considerable number of Regulations arising from the Bill to be brought before the Assembly and approved by early March 2003 in advance of the proposed date for dissolution of the Assembly, on 21 March 2003. It was recognised by the Committee that all these stages needed to be met within the specified time periods to ensure that the provisions, as detailed in the Employment Bill, could come into effect on 6 April 2003 at the same time as the provisions of the GB Employment Act 2002.

20. The Committee had before it the Employment Bill (NIA 11/01) and the accompanying Explanatory and Financial Memorandum. The Committee was assisted during it's consideration of the Employment Bill by a number of research papers prepared by the Northern Ireland Assembly's Research and Library Services.

21. The Committee considered the Employment Bill on 6, 13, 20, 27 June 2002, 4 July 2002 and 3, 5, 12, 19 and 26 September 2002. Minutes of proceedings of Committee meetings on these dates are included in this Report.

22. At the meeting on 6 June 2002, members considered the responses received by DEL on the following public consultations related to the Employment Bill:

• Framework documents on the simplification of maternity leave, paternity leave and adoption leave and pay.
• Flexible working recommendations from the Work and Parents Taskforce.

Members agreed to take oral evidence from the Federation of Small Businesses, the Northern Ireland Committee - Irish Congress of Trade Unions; the Equality Commission for Northern Ireland and officials from DEL. These evidence sessions were held respectively on the 13, 20 and 27 June and 4 July. The views of the impact on employers, of provisions in the Employment Bill, were sought from the Federation of Small Businesses while the likely impact for 'employees' was sought from the Northern Ireland Committee - Irish Congress of Trade Unions. The views of the Equality Commission were also sought in order to determine what potential equality and discriminatory issues that might arise from this legislation. Minutes of Evidence from these meetings are included in a separate section in this Report.

23. Requests for written submissions were also requested from the organisations outlined above and the following Assembly Committees;

• Committee for Enterprise, Trade and Investment
• Committee for Finance and Personnel
• Committee for Health, Social Services and Public Safety
• Committee for Social Development

24. Written submissions on the Employment Bill were received from the Federation of Small Businesses (10 June 2002), the Northern Ireland Committee - Irish Congress of Trade Unions (20 June 2002), the Equality Commission for Northern Ireland (4 July 2002) and the Committee for Enterprise, Trade and Investment (4 July 2002). These submissions are presented in a separate section in this Report along with follow-up responses.

25. Members also agreed to seek the views of interested groups and individuals on the provisions of the Employment Bill by placing a public notice with full details of the Committee Stage of the Bill on the Committee's web page of the Northern Ireland Assembly's website.

26. At the meeting on 3 September 2002 members were briefed by a DEL official in relation to a paper prepared by DEL (30 August 2002) on the rights emanating from the Employment Bill for parents of children, due to be born on 6 April 2003, who were born pre-term. The earliest expected date for the Regulations that implement the provisions of the Bill to come into operation would be early February 2003, assuming that the Bill received Royal Assent in December 2002. However, members were made aware that a 'gap period' potentially exists whereby mothers who are expected to give birth from the week beginning 6 April 2003 could actually give birth as soon as late-November 2002. In instances such as these, when a birth expected after 6 April 2003 occurs prior to the Regulations coming into operation, the parents would be excluded from the statutory entitlements included in the Bill.

27. In a subsequent written submission to the Committee, DEL (12 September 2002) outlined the options that they were currently pursuing in order to overcome this situation:

28. At the meeting on 5 September 2002 the Committee considered DEL's letter of 4 September 2002 informing the Committee of the Minister's decision to table two amendments to the Employment Bill at Consideration Stage:

29. Also at the meeting on 5 September 2002 the Committee debated the general principles of amendments to the Employment Bill. The Committee supported the principle of a proposed amendment by both the Northern Ireland Committee - Irish Congress of Trade Unions and the Equality Commission for Northern Ireland:

It was recognised by members that this proposed amendment would have a more inclusive impact on the Bill by widening the number of people who could potentially claim the statutory entitlements within this legislation. This increase was estimated (assuming certain statistical relations in Northern Ireland would be the same as the UK average) at an additional 5% more people who could be eligible for these benefits. The Committee debated the use of the term 'workers' in previous employment legislation and agreed to request further information from Assembly Research on the legal definitions of 'workers' that were available in relevant legislation. Members agreed that a discussion on the categories to be included in the term 'workers' should be deferred until the next meeting of the Committee when more information should be available on this matter. Members also directed the Clerk to seek further information from the Equality Commission on their definition of 'workers' as used in their written submission (30 August 2002) to the Committee.

30. Other possible areas of amendments were considered by members including the extension of the right to request flexible working to be extended to those with other caring responsibilities, such as elderly parents, as well as the removal of the age barrier of six years, above which working parents of children would not be permitted to request flexible working hours from their employers. Similarly, consideration was given to removing the age restriction (18) on the right to request flexible working by parents of disabled children. Proposed amendments in regard to removing the age barrier of six years and removing the age restriction (18) did not receive Committee support and thus fell. Members agreed that the right to request flexible working for those with other caring responsibilities would need to be addressed in the future. It was recognised that the Employment Bill was based on consultation relating to working parents and the Committee would not therefore consider amending the current legislation.

31. Departmental officials confirmed that an Equality Impact Assessment on the Employment Bill had been carried out in accordance with Section 75 of the Northern Ireland Act (1998). This assessment had concluded that there would be no adverse impact in relation to Section 75 categories. Departmental officials also confirmed that the Northern Ireland Human Rights Commission had ratified the original draft of the Employment Bill.

32. Members also debated the general principle of amending the short title of the Bill to more accurately reflect the scope and purpose of this legislation. It was agreed to continue this discussion at the Committee meeting on 12 September 2002.

33. Members agreed that the Chairman and Deputy Chairman should meet with the Minister to discuss the amendment agreed by the Committee, to change 'employee' to 'worker', in advance of the Committee meeting on 12 September 2002.

34. On 12 September 2002, members also discussed a further WRITTEN SUBMISSION BY the Equality Commission (9 September 2002) that outlined their reasons for supporting the change of 'employee' to 'worker' in the Bill.

35. Members also noted a further Assembly Research paper detailing a list of categories that might be included in any definition of 'workers', and how other legislation, both previous and current, would be impacted upon if the Committee agreed a proposed amendment to change 'employee' to 'worker' in the Employment Bill.

36. At the meeting on 12 September 2002 the Chairman informed the Committee that he had discussed the proposed amendment with the Minister for Employment and Learning, Mrs Carmel Hanna MLA, on Wednesday 11 September in Adelaide House. As a consequence of this meeting the Chairman expressed the view that that it would not be advisable, at this time, to adopt a wider definition to broaden the number of people eligible for the benefits outlined in the Employment Bill for the following reasons:

• If members were to propose amending the Bill to include the term 'worker' as opposed to 'employee' there would need to be consequential change in other legislation, in particular, both previous and current Social Security legislation sponsored by the Department for Social Development. Members were made aware that they faced a critical time shortage in this regard given the short time remaining to the life of this Assembly and also that a Social Security Bill was currently going through the Assembly with accelerated passage and that any amendments to this Bill would have to be tabled that afternoon.
• Secondly, members were made aware that an amendment to include the term 'worker' with the Employment Bill, some of whom did not pay National Insurance Contributions, may also require new legislation to implement a system to compensate employers, as they were currently compensated via the National Insurance scheme. Members were made aware that this would undoubtedly delay the approval of the Employment Bill and could in fact raise the very real risk of losing the Bill altogether.

37. The Chairman further stated the opinion that it would also not be prudent, at this time, to extend the scope of the Bill to include 'workers' as opposed to just 'employees' in regard to the right to request flexible working. This was a possibility, open to the Committee, given that it had neither financial impact on the National Exchequer nor impacted upon past or current legislation, as it was a new right being introduced. The Chairman outlined his personal view that to make such an amendment would create a marked divergence in the Bill. This imbalance would mean that on the one hand benefits in regard to paternity and adoption leave and pay and maternity leave would only be available to 'employees' while in contrast the right to request flexible working would be available to a broader group under the definition of 'workers'.

38. Members were also made aware that DEL had recently issued two policy documents relating to 'Employment Status in Relation to Statutory Employment Rights' and the 'European Union Commission's proposal for a directive on Working Conditions for Temporary Agency Workers'. The Chairman outlined the view that the Committee should reserve judgement on the matter of 'workers' pending further consideration and response by the Committee to these consultations, this was agreed.

39. The Chairman further informed members that, during his meeting with the Minister on 11 September 2002, he had been told that provisions did exist in the Bill that would enable the broadening of persons eligible to receive the benefits detailed in this legislation if so required. This was also stated in the submission (12 September 2002) made by the Minister to the Committee which affirmed that:

40. This statement was qualified by Departmental officials later in the meeting, 12 September 2002, who informed members that, contrary to the Minister's letter which was in front of the Committee, the Employment Bill did not in fact contain powers to extend employment rights through future subordinate legislation. Rather, this enabling power, to introduce subordinate legislate to broaden the groups of persons eligible for benefits outlined in the Bill, was contained in other primary legislation. Departmental officials clarified that the relevant primary legislation were the Employment Relations Order 1999 (Article 24) and the Social Security Bill currently going through the Assembly.

41. The Committee concluded it's deliberations on the Employment Bill with a clause-by-clause scrutiny on 12 September 2002 when the parts of the Bill were formally agreed.

42. Clause 1 - Adoption Leave

43. Clause 2 - Paternity Leave

44. Clause 3 - Statutory Paternity Pay (SPP)

45. Clause 4 - Statutory Adoption Pay (SAP)

46. Clause 5 - Financial Arrangements

47. Clause 6 - Funding of Employers' Liabilities

48. Clause 7 - Regulations about Payment

49. Clause 8 - Decisions and Appeals

50. Clause 9 - Power to Require Information

51. Clause 10 - Penalties: Failure to Comply

It was proposed by Mr McElduff:

The question was put and the proposed amendment fell.

52. Clause 11 - Penalties: Fraud etc.

It was proposed by Mr McElduff:

53. Clause 12 - Rights During and After Maternity Leave

54. Clause 13 - Flexible Working

It was proposed by Mr McElduff:

55. Clause 14 - Regulations

56. Clause 15 - Amendments and Revocations

57. Clause 16 - Commencement

58. Clause 17 - Interpretation

59. Clause 18 - Short Title

60. Schedule 1 - Penalties: Procedures and Appeals

61. Schedule 2 - Amendments

62. Long Title

63. The Committee agreed that it would assist in creating a greater public understanding of the provisions included in the Bill if the short title was to be changed to the 'Parental Employment Rights Act'. While this might deviate from practice at Westminster, it was felt by a majority of members that the Northern Ireland Assembly, in this instance, should depart from the Westminster convention of using short generic titles that did not really convey the scope of the legislation.

64. The Committee agreed a commitment to a full investigation into the rights and benefits to be afforded to 'workers' particularly in light of modern trends in the labour market whereby greater protection rights are being afforded to categories that fall within the definition of 'employee'. Members agreed that there needed to be a consolidation in employment legislation, in particular, the use of 'legally robust' terminology in defining those categories of the workforce to whom the legal provisions apply. Further study into this matter would be shaped by the Committee's input into the two consultation documents, referred to above, that had been recently issued by DEL. It was agreed that a consistent and uniform definition across all legislation would be a more effective way forward and a major policy decision. Furthermore, a wider consultation was required on this major issue before a final decision is taken.

DR ESMOND BIRNIE MLA
Chairman

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mr John Dallat MLA
Mr Arthur Doherty MLA
Mr David Hilditch MLA
Prof Monica McWilliams MLA
Mrs Mary Nelis MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt
Ms Eileen Regan (Northern Ireland Assembly Research)

Apologies: Mrs Joan Carson MLA

Members were briefed by Northern Ireland Assembly Research on DEL's Employment Bill. The briefing covered the following areas:

• key policy and legislative developments;
• relevant statistical data;
• a clause-by-clause review of the proposed Bill; and
• a comparative perspective.

Following the briefing, the following areas were debated:

• the absence of regional figures for recipients of Statutory Maternity Pay (SMP);

• the exclusion of existing foster carers from the benefits contained in the Bill in relation to proposals associated with adoption;
• whether any restrictions had been imposed on the upper age limit of the adopted child;
• whether partners or co-habitees who adopt children were covered by the proposals and, if so, how this would be monitored;

Prof McWilliams stated that she may have to leave to attend another Committee meeting in order to make up a quorum.

• the possible confusion caused by the use of the term 'he,' if proposals were designed to cover both mothers and fathers;

• whether the legislation covered placements in relation to the adoption process and also the adoption of children from abroad;
• the importance of equality in the proposals for both employees and the self-employed;
• whether the self-employed, workers on fixed-term contracts, agency workers and those on employment schemes were within the scope of the proposed legislation;
• how the financial rights of employees would be addressed in cases of business failure;

• how the legislation affected seasonal workers, for example in the agricultural sector;
• the limited grounds for appeal, based on incorrect facts, when an employee was refused a request for flexible working;
• the potential disadvantages to rural employers where public transport may be insufficient to support flexible working patterns; and
• the lack of detail in the legalisation on employers' obligations in respect of requests for flexible working.

Members noted that copies of all submissions to the public consultations undertaken by DEL were available in the Committee Office for members' reference.

Members agreed to call the following witnesses in relation to the Committee's consideration of the Employment Bill:

• the Federation of Small Businesses on Thursday 13 June 2002;
• the Northern Ireland Committee of the Irish Congress of Trade Unions on Thursday 20 June 2002;
• DEL officials on Thursday 27 June 2002; and
• the Equality Commission on Thursday 4 July 2002.

The Clerk was directed to obtain the recent report by the Federation of Small Businesses on 'Lifting the Barriers to Growth in UK Small Businesses.'

Given that the proposals in the Employment Bill had already been the subject of public consultation by DEL, the Committee agreed not to place an advertisement in the local press inviting submissions on the proposed Bill. It was agreed to issue an invite via future press releases for comments to be forwarded for the Committee's attention and also to use the Committee's website.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mr John Dallat MLA
Mr Arthur Doherty MLA
Mr David Hilditch MLA
Mr Roger Hutchinson MLA
Prof Monica McWilliams MLA
Mrs Mary Nelis MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt

Apologies: Mrs Joan Carson MLA

Members noted the Report by the Federation of Small Businesses 'Lifting the Barriers to Growth in UK Small Businesses,' and the written memoranda provided for the evidence session.

Members were briefed by Mr W Mitchell, Mr D Munster and Mr G Roberts from the Federation of Small Businesses. Following an introductory presentation, the following issues were debated with members:

• the issue of small businesses being used by the government as 'unpaid tax collectors;'
• the disruption to small businesses caused by the increasing rights for employees to be absent from work;
• whether the Employment Bill may have potentially negative effects on recruitment;
• the negative impact of flexible working on the work-life balance of the remaining workers;
• whether the Bill should differentiate between large and small employers;
• the positive effects of past employment legislation on pay differentials between males and females and staff retention; and
• whether the financial compensation arrangements contained in the Bill were sufficient.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mr John Dallat MLA
Mr David Hilditch MLA
Mr Roger Hutchinson MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Michael Meehan

Apologies: Mrs Joan Carson MLA
Mr Arthur Doherty MLA
Prof Monica McWilliams MLA
Mrs Mary Nelis MLA

Members noted that the Employment Bill had been passed to the Committees for Finance and Personnel, Social Development and Enterprise, Trade and Investment for comment.

The Committee was briefed by Mr B Gourley, Ms A Hope and Mr L McBrinn on the Employment Bill. The following issues were highlighted during the introductory presentation:

• the need for the legislation to apply to all workers, as the current definition of 'employees' meant that the self-employed, temporary, casual and agency workers were excluded;'
• the need for effective enforcement of rights regarding statutory maternity pay and maternity leave;
• the small percentage of working women who could afford to benefit from the proposal to extend maternity leave;
• the fact that the qualifying service condition for statutory maternity pay discriminates against women who change jobs in the early stages of pregnancy and could therefore affect career enhancement;
• the need for further measures to encourage fathers to spend more time with their children;
• why the 'sickness trigger' for maternity leave and the service qualification for paternity leave should be abolished;
• the need for birth support rights for same sex parents to be included in the Bill;
• why the proposals did not include children adopted from outside Northern Ireland and all adoptive carers;
• why parents with children over 6 years old could not request flexible working; and
• the need for the legislation to cover those caring for elderly parents and relatives.
• Following the presentation, the following issues were debated with members:
• the potential effects of future legislation on current legislation containing stipulations on age limits;
• the need for a partnership between employers and employees regarding the new arrangements, with government having responsibility for measuring any adverse impact on employers;
• why there were no additional entitlements for the adoption of a disabled child;
• the fact that tribunals could only consider whether proper procedures were followed as opposed to the quality of the employer's decision, when requests for flexible working were refused;
• the need for the leave entitlements in the legislation to be extended to carers, and not just the biological parents;
• why there was a service qualification requirement for paternity leave, when no such qualification was needed for maternity leave.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mr John Dallat MLA
Mr David Hilditch MLA
Mr Roger Hutchinson MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt

Apologies: Mrs Joan Carson MLA
Mr Arthur Doherty MLA
Prof Monica McWilliams MLA
Mrs Mary Nelis MLA

Mr R Gamble, Mr W Caldwell and Ms L Taylor from DEL, briefed the Committee on the Employment Bill. The following issues were debated with members:

• why existing foster carers who subsequently wished to adopt the foster child were excluded from the provisions;
• the monitoring arrangements in place to ensure that all criteria were satisfied;
• whether the same rights applied to children being adopted from abroad;
• the potentially adverse effects on employees remaining in the workplace;
• the compensation arrangements for small businesses;
• why the legislation covered 'employees' as opposed to 'workers,' and thus excluded key groups such as the self-employed;

• whether the legislation should provide for leave to be extended in special circumstances;
• why there was a service requirement for paternity leave when no such requirement was in place for maternity leave;

• DEL's responsibility for issuing guidance to employers in relation to the provisions contained in the Bill;
• whether paternity pay was taxable;
• the arrangements in place to enforce compliance and the penalties for fraud;
• why carers for the elderly had been excluded from the arrangements for flexible working;
• the relative responsibilities of both employers and employees in relation to requests for flexible working;
• how tribunals would resolve cases involving requests for flexible working and how the costs of tribunals would be met;

• why flexible working requests should only be considered from parents with children under six years old;

• why legislation on fixed-term work had been delayed from July 2002 to October 2002; and

• whether the current title of the Bill accurately reflected its contents.

Officials stated that they would provide written answers to several areas raised during the briefing.

Members agreed the need for the Committee Stage to be completed on time if possible, given the amount of subordinate legislation to follow from the Employment Bill, which needed to be approved before the dissolution of the Assembly in March 2003

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mr John Dallat MLA
Mr David Hilditch MLA
Mr Roger Hutchinson MLA
Mr Barry McElduff MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt
Mr David Douglas

Apologies: Mrs Joan Carson MLA
Mr Arthur Doherty MLA
Ms Michelle Gildernew MLA
Prof Monica McWilliams MLA

Members agreed that the Chairman and Deputy Chairman could, if necessary, seek an extension to the Committee stage of the Employment Bill, prior to the next Committee meeting.

Mrs J Harbinson, Prof B Fitzpatrick and Ms M McSorley from the Equality Commission, briefed the Committee on the Employment Bill. Members noted the Equality Commission's written submission, which was tabled. The following issues were debated with members:

• the degree of detail that is absent from the Employment Bill and left to appear in subsequent regulations;
• why the legislation covered 'employees' as opposed to 'workers,' and thus excluded key groups such as the self-employed;
• why leave entitlements for employees who cared for the elderly had been excluded from the Employment Bill;
• the need for greater flexibility and equality in the provision of maternity/paternity leave;
• the potential administrative burden to small businesses in implementing the proposals contained in the Bill;

• the importance of guidance and support to employers in clarifying the implications to them arising from both the clauses of the Bill itself and subsequent regulations; and

• why flexible working requests should only be considered from parents with children under six years old.

Representatives from the Equality Commission agreed to forward any suggested amendments they might have on the Employment Bill to the Committee by the end of August 2002.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mrs Joan Carson MLA
Mr John Dallat MLA
Ms Michelle Gildernew MLA
Mr David Hilditch MLA
Mr Barry McElduff MLA
Prof Monica McWilliams MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Stephen Murphy
Mr Paul Stitt

Apologies: None

Members noted the proposed amendments to the Employment Bill which had been received over the summer recess from the Northern Ireland Committee of the Irish Congress of Trade Unions (NIC-ICTU); the Federation of Small Businesses and the Equality Commission.

The Chairman informed members that he had requested a research paper on the potential costs of several of these amendments and that this would be available for the next meeting.

Members noted the Minister's response to queries raised with DEL officials during their evidence session with the Committee prior to the summer recess. Members also noted the five draft Statutory Rules from DEL which would stem from the finalised Employment Bill.

Members noted that the Committee for Enterprise, Trade and Investment had no comment to make on the Employment Bill.

It was agreed to meet on Thursday 5 September 2002, to debate the general principles of the Employment Bill, prior to undertaking a clause-by-clause reading of the Bill. At this meeting, members would also consider whether to seek an extension to the Committee Stage of the Employment Bill.

Mr W Caldwell from DEL briefed the Committee in relation to the rights emanating from the Employment Bill for parents of children, due to be born on 6 April 2003, who were born pre-term.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Mrs Joan Carson MLA
Mr John Dallat MLA
Ms Michelle Gildernew MLA
Mr David Hilditch MLA
Mr Roger Hutchinson MLA
Prof Monica McWilliams MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt
Mr David Douglas

Apologies: Mr Barry McElduff MLA

Members noted an Assembly Research paper detailing the potential implications of several amendments which had previously been considered by the Committee.

Mr R Gamble and Mr W Caldwell from the Department for Employment and Learning (DEL) briefed members on two amendments which would be laid by the Minister at Consideration Stage. Officials stated that they would clarify, in writing, several issues raised by the Committee.

The Committee considered a motion to request an extension to the Committee Stage of the Employment Bill. It was unanimously agreed:

'That in accordance with Standing Order 31(5), the period referred to in Standing Order 31(3) be extended to 18 October 2002 in relation to the Committee Stage of the Employment Bill (NIA Bill 11/01).'

The Clerk was directed to lay the motion in the Business Office.

The Committee debated whether the scope of the Bill as it stood should be extended to include 'workers' as opposed to 'employees' and the usage of these terms in previous employment legislation, as well as their relationship to recent developments in the labour market.

It was proposed by Dr Birnie and seconded by Ms Gildernew:

The question was put and the amendment agreed as detailed below.

The Committee divided: Ayes 5; Noes 4.

Ayes: Dr Adamson, Dr Birnie, Mr Dallat, Ms Gildernew and Prof McWilliams.

Noes: Mr Carrick, Mrs Carson, Mr Hilditch and Mr Hutchinson.

Abstentions: None.

It was agreed that a discussion of the categories to be included in the term 'workers' in the Committee's agreed amendment should be deferred until the next meeting.

Members debated whether the right to request flexible working for parents with disabled children under 18 should be extended.

It was proposed by Mr Dallat and seconded by Ms Gildernew:

The question was put and the amendment fell as detailed below.

The Committee divided: Ayes 3; Noes 4.

Ayes: Mr Dallat, Ms Gildernew and Prof McWilliams.

Noes: Dr Adamson, Dr Birnie, Mr Carrick, and Mr Hutchinson.

Abstentions: Mrs Carson.

Members debated whether to extend the scope of the Bill to allow working parents of children over 6 years of age to request flexible working.

It was proposed by Ms Gildernew and seconded by Mr Dallat:

The question was put and the amendment fell as detailed below.

The Committee divided: Ayes 3; Noes 5.

Ayes: Mr Dallat, Ms Gildernew and Prof McWilliams.

Noes: Dr Adamson, Dr Birnie, Mr Carrick, Mr Hilditch and Mr Hutchinson.

Abstentions: None.

Members considered whether the right to request flexible working should be extended to workers with other caring responsibilities. Whilst it was agreed that this was an issue which would need to be addressed in the future, the Employment Bill was based on consultation relating to working parents and the Committee would not therefore consider amending the current legislation.

Departmental officials confirmed that the Equality Impact Assessment in relation to the Bill had concluded that there would be no adverse impact in relation to the Section 75 categories. Officials also confirmed that the Bill, as drafted, had been ratified by the Northern Ireland Human Rights Commission.

Members debated whether the current short title of the Bill adequately reflected the scope and purpose of the Bill and agreed to continue their deliberations on this matter at the next meeting.

The Clerk was directed to seek further information from the Equality Commission on their definition of 'workers' as used in their written memorandum sent to the Committee.

Members agreed to request further information from Assembly Research on the definitions of 'workers' used in similar previous legislation and, in particular, whether these included the self-employed.

Members agreed that the clause-by-clause reading of the Bill would be undertaken at the next meeting.

It was agreed that the Chairman and Deputy Chairman should seek a meeting with the Minister to discuss the amendment agreed by the Committee.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Dr Ian Adamson MLA
Ms Michelle Gildernew MLA
Mr David Hilditch MLA
Mr Barry McElduff MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt
Mr David Douglas

Apologies: Mrs Joan Carson MLA
Mr John Dallat MLA
Prof Monica McWilliams MLA

Members noted further information from the Equality Commission with regard to the definition of the term 'worker' in employment legislation.

Members noted a further Assembly Research paper detailing a list of categories which might be included in any definition of 'workers,' and outlining the impact of potential amendments to the Employment Bill on previous and parallel legislation.

The Chairman stated that at his recent meeting with the Minister, she had outlined several difficulties with the Committee's proposal to extend the scope of the Employment Bill from 'employees' to 'workers.' Such an amendment, to extend the range of persons eligible for social security benefits, would require consequential amendments to supporting legislation within the remit of the Department for Social Development. An amendment to include 'workers,' some of whom did not pay National Insurance Contributions may also require new legislation to implement a system to compensate employers, as they were currently compensated via the National Insurance scheme. The Minister had again expressed her concerns at the risks attached to delaying the passage of the Bill through the Assembly, in that the necessary supporting subordinate legislation would also be delayed. She had also stated that the Employment Bill included powers to extend the scope of the legislation, if required, in the future and, indeed, her Department had currently put out to consultation two policy documents relating to 'Employment Status in Relation to Statutory Employment Rights' and the 'European Union Commission's proposal for a directive on Working Conditions for Temporary Agency Workers' which would allow views to be assimilated in these areas.

The Chairman further stated that widening the scope of the Bill from 'employees' to 'workers' might also require amendment to the Social Security Bill which was currently being considered by the Assembly under accelerated passage. He considered that it was not practical to proceed with widening the scope of the Bill from 'employees' to 'workers,' but that the Committee's Report should highlight the fact that such a proposal would be considered in the future and the Committee would investigate this area further in its deliberations on the consultation documents detailed above.

The Chairman also stated his opinion that the Committee should not extend the scope of the Bill relating to the right to request flexible working as, although this was a new right which would not have consequential effects on existing legislation, to do so would create a contrast in the Bill and such issues could also be considered in the current consultations, which could lead to better and more consistent legislation and associated definitions.

Mr McElduff enquired about the possibility of delaying the clause-by-clause scrutiny of the Bill to enable members to seek further advice on the reported developments. The majority agreed that, as individual members could table amendments to the Bill as it proceeded through the Assembly, and given the general shortage in time, the Committee should continue with its deliberations to ensure early completion of the Committee Stage. Ms Gildernew sought and received the Chairman's assurance that this would be fully documented in the draft Committee Report on the Bill which needed to be agreed by the Committee before printing.

The Chairman welcomed Mr R Gamble and Mr W Caldwell from the Department for Employment and Learning (DEL) to assist members in their scrutiny of the Bill.

The Committee commenced formal clause-by-clause consideration of the Employment Bill.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

Mr Gamble informed members that, contrary to the Minster's letter which was in front of the Committee, the Employment Bill did not contain power to extend employment rights via subordinate legislation in the future. This enabling power was, however, contained in other primary legislation.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

It was proposed by Mr McElduff:

The question was put and the proposed amendment fell as detailed below.

The Committee divided: Ayes: 1; Noes: 4.

Ayes: Mr McElduff.

Noes: Dr Adamson, Dr Birnie, Mr Carrick, and Mr Hilditch.

Abstentions: None.

The question was put:

The question was agreed to.

It was proposed by Mr McElduff:

The question was put and the proposed amendment fell as detailed below.

The Committee divided: Ayes: 1; Noes: 4.

Ayes: Mr McElduff.

Noes: Dr Adamson, Dr Birnie, Mr Carrick, and Mr Hilditch.

Abstentions: None.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

It was proposed by Mr McElduff:

The question was put and the proposed amendment fell as detailed below.

The Committee divided: Ayes: 1; Noes: 4.

Ayes: Mr McElduff.

Noes: Dr Adamson, Dr Birnie, Mr Carrick, and Mr Hilditch.

Abstentions: None.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

It was proposed by Mr McElduff and seconded by Dr Birnie:

The question was put and the amendment agreed as detailed below.

The Committee divided: Ayes: 3; Noes: 2.

Ayes: Dr Adamson, Dr Birnie and Mr McElduff.

Noes: Mr Carrick and Mr Hilditch.

Abstentions: None.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The question was put:

The question was agreed to.

The Clerk was directed to produce a draft Report for consideration at next week's meeting.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Present: Dr Esmond Birnie MLA (Chairman)
Mr Mervyn Carrick MLA (Deputy Chairman)
Mrs Joan Carson MLA
Mr Michael Coyle MLA
Mr David Hilditch MLA
Mr Roger Hutchinson MLA
Mr Barry McElduff MLA
Prof Monica McWilliams MLA

In Attendance: Dr Andrew Peoples
Mr Colin Jones
Mr Paul Stitt
Mr John McVey (Northern Ireland Assembly Research)

Apologies: Mr John Dallat MLA
Ms Michelle Gildernew MLA

The Chairman informed members that the minutes of evidence of last week's meeting were not yet available from Hansard and that the Committee would consider these at the next meeting.

Members agreed to forward copies of the Committee's Report on the Employment Bill to all witnesses and to the press, embargoed until the Bill reached Consideration Stage in the Assembly. It was also agreed that a copy should be forwarded to the Minister for Employment and Learning.

Mr McElduff agreed to second the proposal that the draft minutes of the meeting on 12 September 2002 be approved.

Members carried out the final reading of their Report on the Committee Stage of the Employment Bill.

Members authorised the Clerk to make any minor editorial changes necessary during proofing of the Report.

DR ESMOND BIRNIE MLA
Chairman, Committee for Employment and Learning

Thursday 13 June 2002

Dr Birnie (Chairperson)
Mr Carrick (Deputy Chairperson)
Dr Adamson
Mr Dallat
Mr A Doherty
Mr Hilditch
Mr R Hutchinson
Ms McWilliams
Mrs Nelis

Mr D Munster )
Mr W Mitchell ) Federation of Small Businesses
Mr G Roberts )

1.

Ms McWilliams: There is currently another meeting, that of the Ad Hoc Committee on access to justice. That may or may not be quorate, and I apologise in advance if I have to go in and out for that reason.

2.

The Chairperson: I welcome the delegation from the Federation of Small Businesses (FSB), Mr David Munster, Mr Wilfred Mitchell and Mr Glyn Roberts. Thank you for coming. This is the first formal evidence session in the Committee Stage of the Employment Bill. I thank you for the written evidence which you supplied and the document which you launched recently. Perhaps you could make a short statement before taking questions.

3.

Mr Mitchell: Do you want us to run through what we submitted?

4.

The Chairperson: Whatever you feel happy with is fine.

5.

Mr Mitchell: The FSB welcomes the opportunity to contribute to the Committee's consideration of the Employment Bill. We are the largest group representing the interests of the self-employed and those who direct businesses in Northern Ireland. The federation has 170,000 members nationally, of which almost 3,000 are based in Northern Ireland. It is run by businesspeople for businesspeople, and is funded solely by member subscriptions. The membership in Northern Ireland elects a policy committee, which is supported by a full-time policy officer. We also run a full-time press and parliamentary office.

6.

The FSB recognises and welcomes the positive aspects of the Bill. However, it has many concerns about how it will affect the small business community, which is the backbone of Northern Ireland's economy. We are disappointed that the Bill does not distinguish between large and small employers. We are gravely concerned that it does not address the inequalities faced by the self-employed.

7.

There are many ambiguities in the Bill. For example, it does not address how employers can claim back administration costs. Implementing costly regulations on the large proportion of the business community which already recognises and offers flexible working policies over and above the current statutory standards would not be in the best interests of employers or employees in Northern Ireland.

8.

For the purposes of the submission we shall concentrate on the three areas of greatest importance to the small business community: flexible working; simplification advice and guidance; and managing absences.

9.

Mr Roberts: The legislation is intended to give working parents with children under six or disabled children under 18 who have been with their companies for a minimum of six months the right to make written requests for flexible working. Companies can reject the requests, but they must set out a considered business case for doing so. Employees will be able to seek redress from an employment tribunal if they feel that their requests have not been taken seriously. Tribunals will be able to rule only on procedures, facts, and whether a business case has been made.

10.

If employers follow correct procedure, they are unlikely to see their decisions overturned by the tribunal. Nevertheless, the consequence of the proposal is likely to be an increase in employment tribunal applications from employees who feel that their employer has failed to give adequate consideration to their request to work part-time. The measure's implications are directly contrary to the Bill's objective of reducing the number of employment tribunal applications.

11.

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

12.

In a large company, cover can easily be arranged, often from within the same department, and if a temporary worker is needed, that can easily be afforded. However, for a small business with, for example, four employees, a member of staff on leave represents 25% of the workforce. It should be recognised that in small firms, each worker plays a key role, one that often requires specialist training. In fact, one worker may constitute a whole department. If a key worker is absent, the owner of the business will not only have to take on cover, but spend time training that temporary employee.

13.

The simplification of current regulations to reduce the complexity of red tape would be welcomed by the business community, since a one-off cost must be more economical than introducing systems with continual costs to both the Northern Ireland economy and the business community. On advice and guidance, we should like to see suggested options available with targeted distribution of flowcharts, maternity leave, contracts and guidance setting out the rights and responsibilities to the business which will benefit from it.

14.

For much of the legislation, the implications of introduction will depend on the payment mechanisms adopted. The worry is that, if Government continues to regulate, the burden of administrative costs on the business community will become unbearable. In the context of the Bill, we feel that payment mechanisms are not the key area for focus. We wish to stress that small businesses strongly resent being unpaid tax-collectors. The whole issue of tax collection by small businesses must be addressed by Government.

15.

Our final point concerns managing absences. That is the key to moving successfully towards a more flexible working culture. Advice and guidance on managing absences must focus on supporting the education of businesses so that they develop best practice in the workplace, as well as examining relationships with employment services and private recruitment agencies. If the Department wishes to support the development of flexible working, it must allow individual businesses the opportunity to explore flexible working options which fit the employee but not the company.

16.

If implemented, the legislation would restrict employees' opportunities for flexible arrangements and restrict business development by imposing impractical routines on employers and reducing profits, as well as inflicting unnecessary regulatory costs. The Committee will be aware of the amount of regulation and red tape with which businesses, particularly small businesses, must work; resentment would build. One thing that contradicts the whole idea of the Bill is that it will encourage recruitment discrimination against men and women of childbearing age. It will also discourage the business community from positively embracing the culture of work-life balance.

17.

Mr Munster is our spokesman on this area and deals with the issue as a small businessperson with 26 employees. He can discuss the other day-to-day problems which businesses will face because of the Bill.

18.

Mr Carrick: Small businesses are the unpaid collectors of National Insurance, tax, statutory maternity benefit, statutory sick pay and student loan repayments - the list is long and looks set to grow. How far can small businesses go before the straw that breaks the camel's back?

19.

Mr Munster: That will obviously differ from one business to another. In my experience, a great deal of my time is taken up with ensuring that we comply with all the regulations. My primary focus is to ensure that we sell enough to make sufficient profit to cover wages and the other costs of running the business. I am spending an increasing amount of time dealing with such issues simply to ensure that I am on the right side of the law. That is not productive time, and it will ultimately affect profitability.

20.

It will vary from business to business. I am concerned about us becoming uncompetitive vis-à-vis businesses in the Republic. I am also concerned that I might become uncompetitive against national companies in the same line as ourselves.

21.

Mr Carrick: In the context of administering the Employment Bill proposals, have you any suggestions as to how the Government could deal with that issue without imposing a burden? In the past, the compensation paid to small businesses has been paltry.

22.

Mr Munster: Take paternity pay, for example. When I had children I was an employee, and I wanted to have time off. I used part of my annual leave, and there was no administrative burden on the company whatsoever. I do not see any need to introduce legislation to ensure that the employee gets paid that, no matter how it is done, ends up being complex, meaning the money must be claimed back through National Insurance. It all adds to the burden. The other option, which we refer to in our paper, is a mechanism whereby the employer is compensated for that extra work. My preference would be for simplicity.

23.

Mr Mitchell: Nationally, the federation does not want to be compensated, since there is an attendant burden of responsibility, and we do not know where that would end. We should rather that the Government took ownership of the matter.

24.

Mr R Hutchinson: We all know the importance of small businesses in Northern Ireland. They employ a large number of people. In the federation, what percentage of businesses have some kind of inbuilt structure for such matters as maternity leave and flexible working hours?

25.

It has been suggested that additional maternity leave should not depend on a woman fulfilling a qualifying service condition. If that were introduced, how would it impact on small businesses?

26.

Mr Munster: You asked whether we have systems in place. I suppose that we all have to deal with such things when they arise, but it is very difficult to have a mechanism in place for every eventuality when you employ a small number of people. In general, there will not be a system as such. We simply have to examine the rules and regulations and deal with them at the time.

27.

On the issue of employees who have not served the existing qualifying period for extended maternity leave, we are concerned about people's increasing right to be absent from work, rather than, in this particular case, the cost of administering it. A key person in my business has taken maternity leave, and I have had to bring in a temporary worker - it must by law be a temporary worker, because you have to keep the job open. When it is a key position, that person has to be trained. It is very difficult to get a temporary worker capable of doing such a key job. The person was in charge of my purchase ledger. There was a disaster when we were paying suppliers whom we should not have been paying, and not paying others whom we should have.

28.

Mr R Hutchinson: You had never done that before.

29.

Mr Munster: You can understand that being of concern to me. That is a cost. The Bill contains an analysis of the actual cost of paying out the money. The cost is not the main issue, however - it is the disruption caused by people being away from the business.

30.

Mr R Hutchinson: Will some businesses decide that it is not worth the hassle and cut their losses? Will it be the straw that breaks the camel's back?

31.

Mr Munster: It is more likely that people will make a negative decision on whether to recruit, where otherwise they would have made a positive decision.

32.

Mr Hilditch: In relation to the impact on colleagues and fellow workers who remain in the workplace, in your own case you envisaged agency workers being brought in. Others may not be able to afford such a luxury, and that may cause stress to the remaining workforce, at which point sickness will kick in. That is a concern.

33.

Mr Munster: Mr Roberts made a point on work-life balance. Flexible working hours are designed to enhance that. However, the stress and strain which it causes to other employees affects their work-life balance, since they are trying to make the business work when it is understaffed.

34.

Mr Hilditch: It therefore imposes a practical and financial burden.

35.

Mr Munster: Unlike a football team, businesses cannot carry an extra 22 people from whom they pick a team of 11. The people required to run the business - and no more - must be employed, and any absence puts a strain on the remaining workers. We are talking about legislating for additional absence, and that will increase the strain.

36.

Mr Hilditch: The compensation factor might kick into the argument if an extra person were brought in.

37.

Mr Munster: If a person is to be absent only for a relatively short period of time, it is not practical to bring in and train someone. It would be worthwhile only if someone were off for a longer period. The difficulty with maternity regulations as they stand is that it is not known until after the baby is born if the employee is coming back at all.

38.

Dr Adamson: I have worked a rota system for most of my life as a medical doctor. On one occasion I worked for six months on a one-on-one rota, which sounds strange, but people were sick or on maternity leave - or simply left the country during the latter part of the troubles.

39.

The proposed legislation gives some people with caring responsibilities the right to request flexible working, but not others, such as parents with disabled offspring over 18 and those caring for elderly or sick parents. Do you consider that discriminatory, especially for small businesses?

40.

Mr Munster: The impact on small businesses will be greater than that on larger ones, where there is an ability to cover absences. Whether the proposals discriminate against other groups of people who might make a valid case for taking time off work is not at issue. My concern is that we keep in mind a new group of people for whom we wish to provide. There have been test cases in relation to equality, which have established that either parent can have time off if a child is sick. Many rules already exist, and any additional regulations make the situation difficult. As employers, we are not unreasonable in helping people or allowing them time off, but there is no protection for the business - the legislation and the protection is directed at employees' interests. If someone is to be away from the business, it might mean losing a new contract. There is no recourse for the business in that case.

41.

Mr Munster: That is where the imbalance lies.

42.

Mr Dallat: When this Employment Bill was debated in the Assembly, I expressed many of the concerns of small businesses - and of course you know my position. I attended the launch of those documents in the Odyssey. I am concerned at certain things which have been said today. Given the abuses against employees on the part of certain of your larger rivals, is a proper Employment Bill not absolutely necessary to protect them against the appalling conditions under which they have had to work?

43.

Mr Munster: Are you speaking historically?

44.

Mr Dallat: I am not going back very far. I speak of some of the recent arrivals, whom I do not wish to name.

45.

Mr Mitchell: We have stated in this document that there should be a difference -

46.

Mr Dallat: They are not members of your federation.

47.

Mr Munster: Such things impact on small employers quite differently from how they impact on large employers. We are not in any way against having some kind of protection mechanism to ensure that those employees are treated fairly. We are concerned about over-regulation and feel there is already too much. All we are doing is making that worse.

48.

Mr Dallat: We have recently heard evidence from employers - many of them small businesses - about their difficulty recruiting. To attract people into the small businesses which you represent, is it not important that they have the best possible working conditions, particularly regarding maternity leave? I was shocked to hear that some members might not recruit women of childbearing age out of fear that they would have a baby. As a mere man, that really -

49.

Mr Munster: You are misinterpreting that remark slightly. The matter does not concern members of the FSB exclusively. It can have the exact opposite effect to that which you desire. I am being devil's advocate here, and I stress that I am not talking about myself or any member of the federation. However, if an employer has a choice between two candidates - one not long married and another slightly older - that might be in the back of his mind. I am pointing out the fact to you rather than suggesting that we should do it.

50.

Mr Dallat: I am asking these questions for my own benefit. You said that you wished to remain competitive against businesses in the Republic. This legislation is all inspired by European law. Is there any evidence to suggest that businesses of similar size in the Republic are not playing the game properly, or that the jurisdiction has no such legislation?

51.

Mr Roberts: That is not a question on which I could provide you with evidence. I was merely flagging up our need to remain competitive. We must examine the experiences of our colleagues in the Small Firms' Association and other small business organisations in the Republic. If the Committee were interested, we could provide the evidence in written form.

52.

Mr Dallat: You are giving evidence to this Committee now, and one assumes that you have done your research.

53.

Mr Roberts: It is not possible for us to know the exact legislative situation in the Republic. We have considerable difficulty keeping track of this Assembly, never mind the Oireachtas.

54.

Mr Dallat: Perhaps enough has been said on the issue. Ultimately, we surely want an Employment Bill which affords employees protection against the rogues, of which there are plenty - not the fine, honourable members of your federation. I know from personal experience that some people believe that they are still in Victorian times, treating employees as they please. The Bill is necessary. However, of the criteria, only three ask for guarantees.

55.

Mr Munster: As I said in my point about maternity leave, the FSB is not convinced that extra regulation is needed in those areas. Mr Dallat said that people have difficulty trading. Therefore, if employers want to retain good employees in the competitive employment marketplace, they will treat them fairly, without regulation.

56.

Mr Dallat: I am not suggesting that men are the rogues in that area. Last night, three young students came to me. They had been unable to attend college for several weeks, and because it is the end of term they were asked to go to college for an extra day. Their employer, who is a woman, sacked them. Therefore, among the employers are people who abuse employees.

57.

Mr Roberts: The FSB is not completely opposed to the Employment Bill. There are details in the areas it would like to consider which, in its experience, represent its 3,000 members. The FSB urges all employers to respect their employees. The FSB employs 130 staff nationally; its 3,000 members in Northern Ireland employ hundreds of thousands more. Therefore, the FSB encourages businesses to follow good practice, stay within the law and ensure that their employees are given every protection under it.

58.

Mr A Doherty: I am a new member of the Committee and inexperienced in this subject. In your submission you expressed disappointment that the Bill does not distinguish between large and small firms. There is a vast gulf in the scale of the problems faced by a firm that employs up to 10 people and a large multinational. Is there a clear dividing line between what constitutes a large firm and what constitutes a small firm? Is it realistic to think that the Bill could make a fine distinction between the two? Could there be different legislation for a firm which has 1,000 employees; one which employs 100 people; and a self-employed businessman?

59.

Mr Munster: There is scope, without being too complex, to determine what would affect businesses with different numbers of employees. However, the impact on a small business is proportionately higher, and the needs and concerns of small businesses are not taken into account. Small businesses are treated in the same way as those which employ more than 1,000 staff.

60.

Mr Mitchell: The FSB accepts membership from businesses with up to 150 employees, which seems quite large. However, in Europe and the UK, 97% of businesses employ fewer than 10 people. The FSB deals with new starts employing one or two people. It wishes to provide reasonable treatment so that an entrepreneur, who is not an expert in working with employees, will be encouraged to employ people. We do not want entrepreneurs to receive a raft of regulations that they read and decide that they are not interested. For example, if a young electronic engineer thinks of an idea and wants to manufacture a product, he must employ people. The FSB wishes to encourage that.

61.

Ms McWilliams: I want you to take my questions in good spirit. If I went for a job in your company, would you think that I was a woman of childbearing age?

62.

Mr Munster: It is not a case of being of childbearing age; it is a case of whether you are likely to have children.

63.

Ms McWilliams: How do you make that judgement?

64.

Mr Munster: I am not suggesting that a judgement should be made.

65.

Ms McWilliams: I noted your words "encourage recruitment discrimination against men and women". I will deal with the women first.

66.

Mr Mitchell: 'Time' magazine has stated that a certain age group is likely to be infertile.

67.

Ms McWilliams: I know all about that.

68.

Mr Mitchell: A medical position has been stated.

69.

Ms McWilliams: What is it?

70.

Mr Mitchell: 'Time' magazine said that 90% of women over the age of 42 would have infertile or defective eggs.

71.

Ms McWilliams: So you would make that judgement?

72.

Mr Mitchell: No, that is what 'Time' magazine said.

73.

Ms McWilliams: What about men? Would Dr Adamson be a man of childbearing age?

74.

Mr Dallat: Oh yes.

75.

Mr Mitchell: Fertility also drops off with men according to 'Time' magazine.

76.

Ms McWilliams: Do you see the point that I am making? There is variation. You make the point about men of childbearing age and then you reflect on women of childbearing age. There is a big difference when you consider men of childbearing age. The population shrinks further when you refer to women, and it shrinks even further when you refer to people being of high fertility.

77.

I like your statement that employers deal very fairly. That was the view even before legislation was introduced and the reason why it was introduced. The Sex Discrimination (Northern Ireland) Order 1976 and Equal Pay Act 1970 were introduced, and I accept that they have probably increased the Regulation burden on you. However, has that legislation benefited the labour market?

78.

Mr Munster: Are you asking whether it has increased the opportunities for women?

79.

Ms McWilliams: I am thinking of issues such as equal pay for work of equal value.

80.

Mr Munster: The statistics show that there is still a gap between what women and men earn on average, but the gap has narrowed. That would suggest that the legislation has benefited women. However, people are becoming more enlightened and aware of the fact that women are capable of doing just as good a job as men, and that is more likely to have had an effect.

81.

Ms McWilliams: The legislation was introduced because there was such a variation in the way people were being treated. Basic guidelines or Regulations were introduced to deal with that. Comparative studies show that the measures have retained the labour force, there is a higher level of loyalty in the labour force, and, in some instances, productivity may have increased.

82.

Mr Munster: That is as a result of retaining more women in the workplace.

83.

We are focusing on legislation that gives people rights to more time off work, as opposed to more time in work. We are focusing on the difficulties that having more time away from the job would cause to a business, rather than on whether women should have equal rights to men.

84.

Ms McWilliams: I accept that. However, would you not anticipate that women might stay longer instead of dropping in and dropping out? With the same employee from start to finish, you would save on training, recruitment and advertising costs. The turnover of staff would not be so high - people would not drop out and not come back, and the situation where those who had shorter maternity leave took time off on sick leave, or did not return at all, could be avoided. Some of the research suggests that it would be beneficial to introduce the proposed measures.

85.

Mr Mitchell: Did your research show whether that applied to a large company or small company?

86.

Ms McWilliams: It suggests both. Obviously, the larger companies can cover matters on a corporate basis. Your argument is that the provisions would result in an extra administrative burden. That is your difficulty, rather than the costs involved, because under the legislation the costs would be recouped.

87.

Mr Munster: It is the administrative burden, and the fact that administering the provisions means being diverted from what you are in business to do. There is also the disruption caused by people not being at work when you need them to be.

88.

Ms McWilliams: Yes, but if they were to give up completely and not come back, you would have a higher turnover - or you would go down the road of employing men only.

89.

Mr Munster: Because of the extended right to come back to work - there is no obligation, for practical reasons, for an employee to make that decision right away - it is extremely difficult to cover a position knowing that you will be bringing someone in on a temporary basis. You have, by law, to keep the job open for the person going off on maternity leave. In that sense, it would be preferable if the individual simply left, because you could then recruit someone to do the job on a permanent basis.

90.

Ms McWilliams: But that is not what is being introduced in this legislation. Those provisions are already in place, so we cannot go back and change them.

91.

Mr Munster: I know that; I just do not want to make the situation worse.

92.

Ms McWilliams: If you bring someone in on a temporary basis, you still have your problem. All that happens is that that person would stay longer when you give extended maternity leave. That might even defeat your own argument.

93.

Mr Munster: I do not think so. If the temporary person were not doing the job in the way that the permanent employee would did it - which was the experience that I had - it would be a potentially disastrous situation.

94.

Ms McWilliams: You had a bad experience, but can you envisage circumstances where you would not have such a bad experience? Those provisions are already in legislation.

95.

Mr Munster: It very much depends on the position held by the employee going off on maternity leave. The legislation obviously does not take account of that aspect, but if the job can be done by a vast number of people and does not require a great deal of training or knowledge about a company's needs, then you could bring someone in on a temporary basis. However, if someone is doing a key job and they are away from that job, it could potentially put a company out of business. The smaller the business, the greater the extent to which that would apply.

96.

Ms McWilliams: What worries me is that you are making an argument against paying maternity pay or giving maternity leave at all.

97.

Mr Munster: I am making an argument against making matters more difficult for businesses than they currently are. I am not arguing against maternity leave. People obviously have to have maternity leave, and they have to have protection from being discriminated against because they have a baby. I am simply arguing against making the situation worse.

98.

Mr Roberts: I recognise the points that Prof McWilliams has made. As a business organisation, we work very closely with the Northern Ireland Human Rights Commission; we are part of the bill of rights consortium and are involved in the debate about a bill of rights; and we are playing a full role with the Equality Commission for Northern Ireland. We want to be part of the solution to this problem. We are simply giving the collective view of almost 3,000 small businesses in Northern Ireland. We make a huge contribution to the economy, and the Northern Ireland economy is a small-business economy. We are bringing forward views that are based on practical experiences, particularly those of business people working in smaller businesses.

99.

We want to have the Employment Bill. There are parts that we would like to see changed, but, as we said in our submission, we welcome the spirit of the Bill. I am sure that everyone here today wants to see the Northern Ireland small business sector flourishing, developing and contributing to the economy. They would want it to continue to contribute to the Exchequer through income tax, VAT and so on - all the areas where we have contributed throughout the difficulties of the past 30 years. We are a positive and progressive organisation, and we want to ensure that matters will work in practice.

100.

Mrs Nelis: I was going to say that you are very welcome, but, after listening to what you have said, I am not too sure whether you are very welcome or not. At the Second Stage of the Bill in the Assembly last week, practically every member of the Committee expressed concern that the Bill did not clarify sufficiently the distinction between small and large businesses and that there needed to be some flexibility. We all shared those concerns.

101.

In saying that, I must remind you that this is a parity Bill from Westminster. It is not terribly enlightening or supportive of women's rights to work and have children. The Bill concerns business. The Bill is really about the retention of working parents in the market, and the introduction of this legislation will help that. The Bill is not so much concerned with the rights of women to hold down jobs and have their babies or whether they have, as you described, not-so-important jobs or very important jobs.

102.

I cannot believe that in this day and age you said that you were a bit worried about the disruption that a women having a baby might cause to your business and that you would prefer there to be no absences. Does that mean that, as Ms McWilliams said, you do not want to employ women who might potentially have a baby, or do you want them to have the baby on the premises? I thought that we had left that sort of attitude behind. Do you prefer to employ women who will give you a guarantee, perhaps in writing, that they will not have children? That is what is coming across from you. We must put that out of the way.

103.

I want to give some statistics. Approximately -

104.

The Chairperson: Could you be brief, Mrs Nelis? Do you have a question on the Bill?

105.

Mrs Nelis: With respect, Mr Chairperson, you did not interrupt anyone else so do not interrupt me.

106.

The Chairperson: I also told Roger Hutchinson to be brief, and I was about to tell Monica McWilliams the same.

107.

Mrs Nelis: I want to put the issue into context. Thirty per cent of mothers in the North of Ireland fail to return to employment after maternity leave. Seven thousand women do not return because they are not welcome back and are not given guarantees that their job will be there. They will be doing exactly what you said. Another 80% of economically inactive women do not want a job; their reason is that they want to have a family and look after a home. They would like to have a job, but they need the co-operation of employers to be able to do so.

108.

The Bill is giving them some measure of co-operation. It asks you, as employers, to co-operate in allowing women to be economically active and to have, and be able to look after, a family. That is really what the Bill is about. Can you tell me what legislative flexibility we can introduce to the Bill, given that you have administrative concerns? Tell us about your proposals to overcome your concerns, and we will try to introduce a clause to deal with those.

109.

The Bill aims to enhance your business by allowing women to have their rightful place in the market. It is about allowing parents their rightful entitlement to maternity and paternity leave and allowing them to negotiate with you.

110.

If I were a smart business person and wanted to run a successful business, I would be delighted if an employee said that they had children under six years old, for example, or were looking after an older person but that they valued being in my employment and wanted to come to some arrangement with me so that they could do their work efficiently but also meet their responsibilities at home. That is what the Bill is about.

111.

Mr Munster: I employ quite a number of women who have been off work to have babies and who have asked me if they could work part-time. Where possible, I have agreed to that. I did so without any legislation because it made sound business sense. Our argument today is not that it is not good to encourage people back into jobs after they have had a baby. It is about shackling businesses with more Regulations that will discourage them and make it difficult for them to operate. That is our argument. Questions were asked, and I apologise if we did not answer them particularly well. However, you misunderstand me, and the federation's position, if you think that we are asking to return to the Dark Ages. We are most certainly not.

112.

Mrs Nelis: You are misreading the Bill, if you will forgive me for saying so. You are misreading its contents. The Bill contains safeguards for businesses. It also contains clauses that will enable you to recoup administration costs in advance.

113.

Mr Roberts: It is by no means right to suggest that we are in favour of going backwards. We are here to try to make the situation work. We are not opposing the Employment Bill. We have concerns about red tape and Regulations. We want the situation to work for employees and employers, particularly those self-employed people who have one, two or three members of staff. Many self-employed people earn below the minimum wage.

114.

Many small business people who are not particularly well off struggle to find business. It would be wrong if we did not communicate their concerns, but we want to be positive and make the situation work. We want to work with the Committee, the Department and other business organisations to get a resolution. However, just because we have concerns about red tape and Regulations does not mean that we want to go back to the Dark Ages. Even within the senior membership of the federation, there is a high proportion of women who are successful entrepreneurs - women who have had families and have made a major contribution to the economy. That is what we want to see.

115.

Mrs Nelis: Women who did not disrupt your work?

116.

Mr Roberts: We are working with organisations such as the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission to try to take forward the broader situation about rights, both for employers and employees. That is why we are here today. We are not in favour of going backwards: we want to move forwards. We want to ensure that employees are protected and that there is a dynamic economy where small businesses thrive, where there is prosperity and where people have jobs.

117.

We are not against women having children. We suggested that there may be people who would decide to employ a certain person because of the Regulations. Because of the Bill, people may seek to employ a certain person because it would be easier for them to do so. We are not in favour of that. If they were to take that view, it would be completely wrong. We are trying to prevent that.

118.

Mr Mitchell: Much of what I was going to say has been said. The number of young women who are becoming members of the federation and starting their own businesses has encouraged us recently.

119.

The Chairperson: The Bill seems to make arrangements for financial compensation to companies, particularly small ones. The Bill also attempts to cover some of the administrative costs of processing maternity and paternity pay. You seem to have concerns that those provisions are not strong enough. Do you want to elaborate on that? Are they not definite or clear enough?

120.

Mr Munster: We are concerned that even administrating that will be a problem.

121.

Mr Roberts: That is the problem in a nutshell.

122.

The Chairperson: Are you saying that the provisions will not fully compensate companies? Is the bottom line that they will be out of pocket?

123.

Mr Munster: It is about how to measure the cost of the key person in the small business having to take the time to administer the mechanism used to pay the benefit; to reclaim whatever percentage they are allowed; and also to reclaim what they are allowed for administration.

124.

Ms McWilliams: You do not like the Bill in its entirety. Will you be proposing any amendments?

125.

Mr Roberts: We have highlighted three areas of the Bill, and we have made representations to the Department on this broad area. We need to consider specific practical amendments.

126.

Ms McWilliams: So there may be amendments?

127.

Mr Roberts: Yes. We are not completely opposed to the Bill. If there are practical amendments that we can make to address our concerns, we will go down that road.

128.

The Chairperson: We would be interested to see any ideas on detailed amendments that you come up with. The same will apply to other groups giving us evidence. I want to return to Arthur Doherty's point about definition. The federation seems to be suggesting that it would like the Committee to amend certain provisions to exclude small businesses or to change the way in which they are treated. However, how should the Committee define a small business? Should it be defined as one with fewer than 10 employees, fewer than 25 or fewer than 50?

129.

Mr Mitchell: It would not be one number. There would need to be a graduated approach.

130.

Mr Carrick: I wish to express an interest: my wife is a small employer. Contrary to the impression that the Committee might have given this afternoon, I appreciate the contribution of small businesses to the Northern Ireland economy and the employment that they provide. I hope that they will continue to provide jobs.

131.

Mr Munster: Thank you.

132.

Mr R Hutchinson: I agree with Mr Carrick. Do not be put off by some of the Committee's questions.

133.

Mrs Nelis: According to your statistics, women own only 7·6% of businesses.

134.

Mr Mitchell: Business ownership by women is increasing nationally, according to the latest survey.

135.

Mr Roberts: I presume that you refer to our 'Barriers to Growth' document. We had hoped for a better response rate to our survey.

136.

The Chairperson: On behalf of the Committee, I thank you for your oral evidence and for your written submission. I wish you well.

Thursday 20 June 2002

Dr Birnie (Chairperson)

Mr Carrick (Deputy Chairperson)

Dr Adamson

Mr Dallat

Mr Hilditch

Mr R Hutchinson

Mr B Gourley ) Northern Ireland Committee of the Ms A Hope ) Irish Congress of Trade Unions

Mr L McBrinn )

137.

The Chairperson: I welcome Mr Gourley, Ms Hope and Mr McBrinn from the Northern Ireland Committee of the Irish Congress of Trade Unions and thank them for their written evidence. They will now give a short presentation.

138.

Mr Gourley: I thank the Committee for the opportunity to present evidence on the Employment Bill. We are disappointed that much of the Bill will be passed through Westminster. We deal only with family-friendly policies, which, through no fault of the Committee's, is outside its remit.

139.

Ms Hope: I, too, welcome the opportunity to make a presentation to the Committee. The progress in work-life balance issues, particularly improvements to maternity and parental leave rights, has been one of our key objectives for a long time. We represent some 220,000 workers in Northern Ireland, the majority of whom are parents and more than half of whom are female, so, for a long time, we have had input into those issues on behalf of all our affiliates. Many of our members have been adoptive parents, so we have worked on adoption issues also. In the past, no leave provision was made for adoptive parents, and it was not recognised that they needed time with a child, especially when they adopted older children rather than babies.

140.

We welcome all the advancements in the Employment Bill, but we have concerns about it. First, we question the definition of "employees" and the application of the legislation only to those so termed. We have always argued that all family-friendly rights should apply to workers, not just employees. "Employee" is a narrow definition of someone in the workforce; the broader term "worker" refers to someone with an employment contract or an employment relationship, thus covering both forms of employment.

141.

The narrower definition excludes the selfemployed; temporary workers; casual workers; and agency staff. Given the growth in numbers of such workers in Northern Ireland, especially among women, many people will be left outside the loop. That will leave an unacceptable gap in the extension of rights afforded by the Bill, so the matter must be considered seriously. We urge that the definition of "employee" be amended.

142.

We welcome the provisions to simplify maternity pay and leave, but the effective enforcement of maternity rights legislation, including the operation of sex discrimination law and health and safety rights, must be examined. While the response to 'Work and Parents: Competitiveness and Choice' was delivered by several organisations in GB, the Citizen's Advice Bureau carried out research, particularly on the health and safety of pregnant women. We must consider health and enforcement issues. The Equality Commission, when it appears before the Committee, will point out that one of the highest categories of complaints that it receives is from women who have been discriminated against while pregnant. That issue has not been dealt with at all.

143.

We welcome the extension of maternity leave from 18 to 26 weeks, which applies only to mothers who fulfil the qualifying conditions. We welcome also the proposed simplification of qualifying conditions and notification periods and the proposed reduction of the sickness trigger from six to four weeks. Overall, the proposed new framework will probably be simpler and more manageable for employers and employees; however, the number of women who benefit from longer periods of maternity leave will not increase significantly.

144.

The Bill does not address many issues raised in our response to 'Work and Parents: Competitiveness and Choice'. For example, to extend maternity leave that is paid at a low flat rate, and to extend unpaid additional maternity leave, will benefit only the small percentage of women who can afford to take time off. When the Bill was debated at Committee Stage on June 5, the Minister mentioned the Department's commitment to social inclusion. Unless maternity pay actually replaces earnings, few women will be able to take extended leave. Only those with a sufficient income will be able to do so; therefore TSN requirements will not be addressed.

145.

We regret that the provision to restrict earnings-related statutory maternity pay to the first six weeks of maternity leave will continue to apply, despite many groups' arguments against it. Women will take the longer period of leave to which they are entitled only if the period for which earnings-related statutory maternity pay is extended. We argued for the extension of that period, because many women need extra time to adjust to motherhood, to find adequate childcare and to ensure that their child is settled before they return to work.

146.

If we want to retain women in the workforce, we must find a way to do so; otherwise, the reasons for giving paid leave in the first place will have been negated. In addition, it is costly for employers to recruit and retrain staff that are needed when women do not return to work after a short period of maternity leave. Although we would welcome an increase in the period for which statutory maternity pay is available, maternity pay is quite low. We would argue for earnings replacement maternity pay. That is an area in which limited universalism is fully justified in the interests of the health and welfare of all working women and their babies and to protect their labour market participation.

147.

We are disappointed that provisions, particularly those relating to additional maternity leave, still have a qualifying service condition. The existing service requirement for statutory maternity pay in itself is inherently discriminatory against women who change jobs in the early stages of pregnancy. The requirement of a service qualification means that, if a woman changes jobs when she is one or two months pregnant, she will be unable to access statutory maternity pay. Those qualifying conditions inhibit women's job mobility and, potentially, their career advancement, as changing jobs while pregnant can mean a loss of statutory or contractual maternity benefits.

148.

In our response to the Green Paper, we suggested that the Government consider an integrated maternity and parental leave scheme that would afford the same protection as current maternity leave. It would be equally and individually available to both parents as a possible alternative to extended unpaid maternity leave. It would also encourage more fathers to spend time with their children. Unless it is financially possible, many fathers do not spend as much time with their children as they would like. Working life in Northern Ireland is such that fathers usually earn more than mothers; therefore mothers will usually take the time off.

149.

The chance to radically change the current system was lost in the 'Work and Parents: Competitiveness and Choice' Green Paper. It only tinkered with it, adding bits here and there, but it did not address pay issues, length of leave and so on. Until that happens, many women and men will still be outside the loop.

150.

We welcome the reduction of the sickness trigger from six weeks to four weeks before the expected date of childbirth; however, the provision that an employer can trigger a woman's maternity leave should be abolished or redrafted so that its application is limited clearly to sickness. It should also allow an employer to expressly agree that the sickness trigger would not apply. We will address that issue more thoroughly when proposing amendments.

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?

321.

Mr Gamble: We will cover that later, but if he does not pay he will be subject to penalties. If an employer fraudulently claims to have paid, that would also be subject to penalties. If it was sufficiently serious, it could lead to criminal proceedings. There will be penalties, both for people wrongly claiming, and for people failing to pay. There will also be penalties for failing to keep records that allow the Inland Revenue to determine whether individual employers are administering the scheme properly.

322.

Mr Dallat: Keeping records is, historically, one of the biggest problems faced by employees. There are difficulties in getting even a basic wage slip.

323.

Mr Gamble: Much of that administrative work is now done on computer packages for processing wages. Although many smaller firms probably do not have such facilities, records must still be kept. It is not intended that records should be voluminous, but they must be sufficient to determine whether employees were off work, whether they were paid what they were due and whether the claim that is made to the Inland Revenue for reimbursement is proper.

324.

It will be possible on occasion for some firms to claim in advance if they know when payments are due. Rather than taking money out of their cash flow, firms will be able to ask the Inland Revenue to give it to them up front.

325.

Mr Dallat: What happens if an employer goes bankrupt, disappears or moonlights?

326.

Mr Gamble: In that case the Inland Revenue will pay up.

327.

Mr Carrick: Is there any onus on employers to establish the validity of the claim, or do they simply accept any documentation at face value?

328.

Mr Gamble: All that will be spelled out more fully in the Regulations, but the intention is that the process would not be onerous; the employee would self-certify that he intended to take paternity leave at some time. He would have to give some notice about when his partner is due to give birth and that he intends to take one or two weeks' paternity leave some time in the eight weeks after the birth. There is not much likelihood of people claiming that they are having children when they are not.

329.

Mr Carrick: Your faith in humanity is greater than mine.

330.

Mr Gamble: The claim will have to be certified, and it can then be checked.

331.

Ms Taylor: I hope that an employer in a small business would be close enough to his staff to realise who is being honest; there is scope to check if you have any reason to doubt.

332.

Mr Carrick: Or whistle-blow.

333.

Mr Gamble: Statutory employment pay is not free; it will probably cost people money because they are taking a pay reduction and having a proportion of that pay made up by statutory employment pay. If their employer pays them at the standard rate when they are off, they are not entitled to statutory employment pay.

334.

The usual checks will be made, and whatever people say must be confirmed. However, the incentives may be greater for employers who try to claim that they have made payments when they have not.

335.

Mr Carrick: It would be interesting to see where the birth rates will rise during the next World Cup.

336.

The Chairperson: Yes, that is an interesting thought.

337.

Mr Gamble: Especially for the second two weeks.

338.

The next group of clauses are about resolving problems, requiring information and inflicting penalties where fraud has been committed, as well as penalties for failure to supply information and so on.

339.

Clause 8 is about resolving disputes, including those concerning a person's entitlement to paternity or adoption pay, the amount that the employer should expect to recover, and disputes over the employer's calculation of average weekly earnings, for example, in cases in which the employee is entitled to 90% of weekly earnings. The hope is that most disputes will be resolved in the workplace by discussion and if necessary, there could be some form of arbitration or mediation to deal with such problems. Ultimately, the Inland Revenue could make formal decisions about employees' and employers' rights, and there would also be a right of appeal against those decisions.

340.

Clause 8, therefore, is broadly concerned with disputes about entitlement, whether the calculations are correct, and how much the employer should be able to reclaim. It is to be hoped that those matters can be resolved easily; if not, there is a right of appeal. It is a standard type of clause to deal with matters involving the Inland Revenue's right to inspect people who are making claims, and to take decisions.

341.

Clause 9 deals with the powers of the Inland Revenue to require information. Most people comply voluntarily, but if they do not, the Inland Revenue will have powers to require people to produce records. They will deal with cases in which employers or claimants of paternity benefit are unwilling to provide the necessary information. That is a standard clause that appears in other tax contexts, such as tax credits. The information asked for must be reasonably requested and relevant. The Inland Revenue cannot ask for mountains of information. That will be set out in Regulations that will have to be agreed with the board of the Inland Revenue before they can be brought to the Assembly. The Assembly will have an opportunity to consider all the Regulations before they come into force.

342.

Clause 10 is concerned with failure to comply, and the related penalties for that. We have already had some discussion about that matter. The penalties that we talked about would not be imposed very often, because most people comply with the requirements. In case they do not, however, the penalties range from £300 to £3,000, and cover negligence and fraud.

343.

The other clauses deal with failure to comply. Clause 11 is a standard clause concerning the penalties for fraud and incorrect payments. The maximum penalty would be moderated according to the seriousness of the fault. Some people might face criminal proceedings rather than civil penalties. Those are standard measures that the Department will take to ensure that the system works and is not abused, and that people provide the information that is needed for the system to work, to be monitored properly, and so forth.

344.

Mr Carrick: Essentially, the Inland Revenue will administer the scheme, and enforce compliance. It will use its authority to do so. It has wide-ranging powers.

345.

Mr Caldwell: Clause 12 is a technical clause that is required for specific circumstances that may arise. It is about rights during and after maternity leave. It enables provision to be made for situations that arise from the extension of maternity leave, and for potential combinations of ordinary maternity leave with other new types of leave, such as adoption leave. Although those situations do not arise at present, they might do so in a minority of cases when the length of maternity leave is extended to one year, and when new rights to adoption and paternity leave come into operation. That will be dealt with by subordinate legislation and Regulations will set out the contractual benefits and rights to return that will apply in specific circumstances.

346.

The Chairperson: Can you clarify what would happen in the following hypothetical case, which the Committee will forward in writing to the Department? I apologise for the length of question - I am not sure who thought it up.

347.

A woman who is on maternity leave, having had a baby, conceives three months into her paid maternity leave. She continues on maternity leave (a further three months on paid leave and six month on unpaid leave). Her period of unpaid leave ends around the time of the birth of her subsequent child. What rights would she have regarding maternity leave and pay at that point?

348.

That is a convoluted, hypothetical case. However, it is a possible scenario. What would happen in that combination of events?

349.

Mr Caldwell: I hesitate to attempt to answer that question. That particular hypothetical case would require thought and calculation.

350.

Mr Gamble: It seems as though the woman would begin a new period of maternity leave of up to 26 weeks. However, all circumstances would have to be considered.

351.

The Chairperson: The question is whether the qualifying period is only worked out once for an employer, but covers a woman for any subsequent periods of maternity leave, even though she has not served another period of 26 weeks' work between pregnancies. Can you see what I mean? I may not have explained it well.

352.

Ms Taylor: That is my understanding of the situation. However, the Department would need to give it closer consideration.

353.

Mr Caldwell: The Department will assess that case when the Committee forwards it in writing.

354.

Mr Hilditch: How would that affect any holiday pay accrued during that period of time?

355.

Mr Gamble: My understanding is that women have certain rights regarding terms and conditions when they return to work after a period of maternity leave. If they extend maternity leave by six months of unpaid leave, there is some diminution of those rights when they go back to work. For example, they are not entitled to return to the same job, but to an equivalent one.

356.

Moreover, there may be concerns about matters such as their entitlement to benefit from any salary changes during the second period. I must check on holiday pay - it should not be assumed that it carries on.

357.

Mr Carrick: The qualifying service condition for statutory maternity pay discriminates against women who change jobs in the early stages of pregnancy. Career enhancement can, therefore, be affected. The trade unions raised that issue.

358.

Mr Gamble: Statutory maternity pay is available from day one.

359.

Mr Carrick: Is there a qualifying service condition?

360.

Mr Gamble: No.

361.

Ms Taylor: The 26 weeks' additional unpaid leave is fine.

362.

Mr Carrick: Can you see a problem with that from a woman's point of view?

363.

Mr Gamble: Career enhancement might be affected if a woman took a further six months' off after receipt of statutory maternity pay. I do not see the problem clearly.

364.

Ms Taylor: It returns to the earlier point about an established relationship with the employer. For someone to arrive, stay in a post for two weeks and then announce that she will disappear for a year is difficult for a business to accept.

365.

Mr Carrick: The trade unions were concerned about that.

366.

The Chairperson: I understand that subsections 18, 19 and 20 of the GB Employment Bill deal with the maternity pay period, the right to statutory maternity pay and entitlement. Those issues do not seem to be replicated in this Bill as it stands.

367.

Mr Caldwell: There will be another Social Security Bill.

368.

The Chairperson: That explains it.

369.

Mr Gamble: Clause 13 is rather different from the other clauses. It concerns the provision of a new right for the parents of young children to request flexible working arrangements. The procedures that employers must follow when considering requests are specified, together with the grounds on which requests can be refused. The intention is to facilitate dialogue between parents and employers about working patterns that better meet the parents' responsibilities for childcare until a child's sixth birthday while taking account of the needs of the employer. Parents can balance work and parenting responsibilities during that time. Draft Regulations will be drawn up with regard to that, and there will be a period of consultation. A task force, chaired by Sir George Bain, was set up to develop an approach to flexible working for the UK as a whole. The task force's recommendations have influenced the approach that will be followed in the Regulations.

370.

The employee must make a written request to the employer, and they then meet to discuss it. The employee must tell the employer how his flexible working proposals could tie in with the business needs. The employer is then supposed to make an assessment on whether he can accept the request or make some proposals for altering it. If he cannot accept it, he should give the reasons, based of the list of grounds set out in clause 13, of which there are about a dozen.

371.

The employee can appeal if he does not agree that the decision is properly based. The intention is that the appeal could be settled in the workplace or through an arbitration arrangement. In England, the remit of the Advisory, Conciliation and Arbitration Service (ACAS) will be extended to bring binding arbitration to this type of situation. We should probably do the same with the Labour Relations Agency's arbitration scheme.

372.

If none of that works, the employee could go to a tribunal. It is intended that the tribunal would consider whether the employer had followed the process properly and whether he had given a reasonable reason for not accepting it. It would not try to second-guess the employer's estimation of his business needs. The assumption is that the employer knows what his business is about. The tribunal would see whether the reasons for refusal, which would be listed in the Bill and Regulations, seemed reasonable.

373.

It is a type of voluntary approach to see whether arrangements can be reached rather than giving an across-the-board right to flexible working, which some people thought would be a good idea. However, businesses thought that that would be a disaster, and it would be difficult for businesses to administer.

374.

The Chairperson: In previous briefings, the point was made that the Bill focuses on one type of carer - parents. What about the perceived inequity of carers of elderly parents or elderly relatives?

375.

Mr Caldwell: The Bill must be viewed in the context of the subject matter, which is work and parents. That is what the Bill is about. Other matters such as care for the elderly would be for an entirely different forum.

376.

Mr Carrick: I want to confirm that there is no de minimis situation with small employers. If you have two or ten employees, there is no de minimis. Does it apply to everyone from one employee upwards?

377.

The Chairperson: Yes.

378.

Mr Carrick: If a retailer opens a shop six days a week from 9.00 am to 5.00 pm, must the flexibility be within that timescale? Can a proprietor be asked to open the shop at 10.00 am or close it at 6.00 pm?

379.

Mr Gamble: If an employee of a retail outlet asked for flexible working time, he would make a proposal to the employer about how it could fit in with the business. If a reasonable proposal as to how the employer could get round that is not made, the process would stop immediately.

380.

Mr Caldwell: If the employee can convince the employer that there would be no detrimental effect in starting the business an hour later, it may be possible to agree that flexible way of working. The employer may lose out or it may enhance the business.

381.

Mr Carrick: It is a judgement call. However, the employee should not be allowed to usurp the judgement of the employer, who is paying the bills.

382.

Mr Gamble: The employee would propose how flexible working could fit in with the employer's business, and subsequently they discuss that. The employer may decide that it cannot be done, or that the reasons are not strong enough, and the employee may accept that. However, if the employee disagrees with the decision, the case could be taken to a tribunal.

383.

Mr Carrick: Who would meet the costs of the tribunal?

384.

Mr Gamble: As with unfair dismissal, each side would meet its own costs, unless the tribunal chose to put them on one side, for example, for vexatious behaviour.

385.

The Chairperson: Tribunals make decisions on narrow grounds. It is not a judgement of unreasonableness; it is based on the employer stating the facts incorrectly.

386.

Mr Caldwell: It is not a judgement of the particular circumstances; it is to do with whether the process has been adhered to.

387.

Mr Gamble: There could be a dispute about whether an employer rejected a proposal on the basis of facts that were incorrect, but not on the employer's judgement of whether the business would suffer. If the employer makes a reasonable argument for the judgement, the tribunal will not dispute that.

388.

The Chairperson: Presumably you have ruled out extending those grounds because of the balance of opinion in the consultation.

389.

Mr Gamble: That part of the consultation aroused the greatest interest, as there seemed to be a demand for flexible working.

390.

Mr Carrick: There is a proposal that employers will have a duty to consider flexible working hours for the parents of children who are under six years of age; that is the cut-off point. Did that come out of the consultation?

391.

Mr Gamble: Yes. There was a discussion about children starting school. Six years was the age that was thought reasonable. It could be set at any age, but most of those consulted felt that six years of age was reasonable.

392.

Mr Carrick: The trade union representatives thought that that was an unacceptable cut-off point. They were thinking of 18 years of age.

393.

Mr Gamble: Twenty-five. [Laughter]

394.

The Chairperson: Sixty-five. [Laughter]

395.

Mr Gamble: The final batch of clauses is quite short. Clause 14 is concerned with the nature of the regulation-making powers, and that they will be subject to negative resolution by the Assembly. In some cases the Bill is inserting powers into another piece of legislation such as the Employment Rights (Northern Ireland) Order 1996. If that is the case, it is that Order that determines the process for the Regulations. If it says they are affirmative, they are affirmative. The Regulations take their tone from the legislation concerned.

396.

Mr Caldwell: Many Regulations are required to be made under the Bill. There are nine different sets of Regulations relating to maternity, paternity and adoption.

397.

The Chairperson: There is an avalanche in the offing.

398.

Mr Caldwell: Everything must be ready for the legislation to come into effect on 6 April 2003.

399.

The Chairperson: Theoretically, the Committee could ask for an extension of Committee Stage in September. However, that could cause problems with timing. How much time is there to reach Royal Assent? The Committee Stage is due to end on 23 September.

400.

Mr Gamble: Consideration Stage would have to take place in October. The Bill needs to receive Royal Assent not later than December 2002, or early January 2003, because the powers in it are used to bring Regulations before the Assembly. We hope to have dealt with those Regulations by early March so that when they come into effect in April, employers and employees will have had some time to consider them. Information will be published in the meantime, on the basis that the Assembly is expected to agree the Regulations in due course.

401.

Mr Caldwell: There are one or two as yet unsolved timing problems, the main one being that until the Bill receives Royal Assent, the Regulations cannot be made.

402.

Furthermore, babies expected to be born in the week beginning 6 April could be born prematurely as early as mid-November. No solution has been developed to deal with that problem.

403.

Mr Carrick: There is a practical issue to be considered concerning the Inland Revenue and its documentation. It would have to redesign its literature.

404.

Mr Gamble: The Inland Revenue is working on this on the basis of certain assumptions. If the assumptions turn out to be wrong, it would not be possible for everything to come on line by 6 April. The corresponding GB Employment Bill has still not reached Final Stage.

405.

Mr Caldwell: The Bill reaches Report Stage today.

406.

The Chairperson: In the past couple of days, we have received a letter from the Minister concerning the fixed-term contracts with regard to Northern Ireland being covered in the GB Bill. Previously, the Committee thought that that would apply from July, but it has been put back to October. Will that cause problems with regard to the European Union? I had thought that the date in July was fixed.

407.

Mr Caldwell: It was fixed, but a one-year extension was given. This was to apply from 10 July 2001, but it was changed to 10 July 2002. Certain difficulties arose in GB.

408.

409.

410.

Mr Gamble: I think he said that it could be changed but the convention was to keep the titles of Bills reasonably broad because amendments and additions might have to be made. Something could be added in and in the future no one would know where it is because it is in an anomalous place. There is time to think about that, and if there are strong feelings, we could ask George Gray, the chief legislative counsel, to give us a more formal response. That was his immediate reply, but we could ask him how strongly that convention holds.

411.

The Chairperson: Ms McWilliams was arguing that the title should be something like "parental and workers' rights Bill". That title may not capture everything.

412.

Mr Gamble: Flexible working is included.

413.

Mr Caldwell: That point could be addressed by the Regulations. They will be specific and the title will give a better indication of the subject matter.

414.

The Chairperson: That is a presentational political point. The public may be trying to get a handle on what the Assembly is doing, and they read the Employment Bill and wonder what difference it makes, and that is a concern. However, I appreciate the tradition and the legal point.

415.

Thank you for coming, and I apologise for the late start. The Bill is complex and I thank you for answering our questions and wish you well as you progress it.

Thursday 4 July 2002

Dr Birnie (Chairperson)

Mr Carrick (Deputy Chairperson)

Dr Adamson

Mr Dallat

Mr Hilditch

Mr R Hutchinson

Mr McElduff

Ms J Harbison )

Ms M McSorley ) The Equality Commission

Prof Barry Fitzpatrick )

416.

The Chairperson: Good afternoon. I welcome from the Equality Commission, Joan Harbison, chief commissioner, Mary McSorley, manager in the information and advice department, and Prof Fitzpatrick, head of legal policy and advice. Thank you for your written submission.

417.

Ms Harbison: I will speak first, and then Ms McSorley and Prof Fitzpatrick will talk about some issues that the Equality Commission thinks are significant. We are delighted to be here today, and have made previous representations to the Committee on this subject.

418.

The Equality Commission is keen to support and encourage anything that extends parental rights and embraces flexible working and work/life balance. The commission was encouraged by the Minister's commitment to issues in relation to work/life balance, as we believe that having a content workforce, which feels valued by having good working conditions, is as good for business as it is for the individual. The commission works hard at all levels with employers, and is particularly sensitive to issues relating to small employers when any Regulations or legislation is introduced. Clarity in the legislation, and in Regulations developed from that, will benefit anyone who is trying to implement the legislation and people such as ourselves who are trying to advise employers on the implementation of that legislation.

419.

We have some concerns about the differences between the Northern Ireland Bill and the comparable Bill in Great Britain. However, we understand that there are ways in which those differences may be covered. The commission wants to be absolutely assured that people in Northern Ireland would, in no way, be disadvantaged as a result of those differences, and that any gaps in the Northern Ireland Bill will be covered in some other way.

420.

The Equality Commission is a body that promotes equality and equity, and it is important that people in Northern Ireland do not see that devolution disadvantages them in any way. We feel very strongly about that, as I am certain that most, if not all, of the Committee does. We have particular concerns about some aspects of the Bill and about how it relates to wider legislation.

421.

Prof Fitzpatrick: We have two concerns that I will mention by way of introduction. It is difficult to react to the Bill when so much is reliant on Regulations being made later. We hope that the provisions to deal with matters in the Bill would be straightforward, but Regulations are necessary for a range of issues, for example, flexible working. Clause 13 amends the Employment Rights (Northern Ireland) Order 1996 - introducing clause 112G, subsection (2), paragraphs (a) to (n), which sets out what the Regulations should contain. Therefore we are concerned about the details that must go into any Regulations that will be made.

422.

We are also concerned about the use of affirmative resolution Regulations, especially as two EU Equality Directives are apparently to be implemented through such resolutions before the next election. Affirmative resolution Regulations leave little opportunity for MLAs to influence the content, and we would have preferred to have seen more details of those arrangements in the Bill rather than relying on Regulations.

423.

We are also genuinely disappointed that flexible working rights apply only to employees and not to workers. We have had a definition of the word "employees" for over 30 years, and many vulnerable workers are not always defined as such. As a former law professor, I would have had to examine the case law closely to ascertain who was an employee and who was not. Most European legislation, minimum wage legislation, and other such matters, use the term "worker" instead of "employee". For example, the working time Regulations, which deal with annual leave, refer to workers, yet this Bill refers to employees. The minimum wage legislation deals with pay, as does this Bill, yet even from an employers' viewpoint, employers will have to have different regimes depending on whether those who work for them are workers or employees. The Equality Commission feels that the legislation should simply use the well-established definition of worker, rather than "employee".

424.

Ms Harbison: That reinforces the importance of the clarity that I mentioned at the beginning. That sort of clarity becomes important in our work in supporting, helping and advising employers. It makes it easier for the employer and us - and any other similar bodies that - to advise people clearly and in a way in which they can implement what we say.

425.

Ms McSorley: We made some specific comments in our submission about what we would have liked to have seen on paid maternity and adoption leave, and, indeed, the new flexible working request right. Following on from Prof Fitzpatrick's point, it is difficult to make definitive comments when we do not have the detail of the Regulations. We raised some concerns in the earlier consultations, and we were slightly disappointed that the opportunity has not been taken in the Bill to look at some of the other general rights for parents, for example, parental leave and time off for dependants.

426.

The Bill could have provided an opportunity to look at some of those general areas, because we foresee that also creating some problems for employers. There is already a lot of uncertainty and confusion about the distinction between paternity and parental leave, which arose when the latter was first introduced. While we welcome all of the provisions, which are ground breaking steps in some ways, for example the introduction of paid paternity leave, statutory paternity leave and pay, we would have liked to have seen some of the measures go a bit further. There could have been an opportunity to look more broadly at an integrated maternity and parental leave scheme, which would provide rights that were individually and equally available to both parents, and would address the cultural perception that the care of young children is solely the preserve of women, as opposed to both partners. We want to give working parents more choice and flexibility. Our submission goes into more detail.

427.

Dr Adamson: As the prime reason for maternity leave is to protect the health of the new mother and baby, why do you consider that the scheme should be equally and individually available to both parents?

428.

Ms McSorley: Our counterparts in Britain also suggested this. We accept that as the primary reason, but we have concerns that extending maternity leave only, as opposed to a boarder choice of parental leave, may be perceived as being detrimental to women in practice. It could give rise to a situation where employers presume that all women of a certain age would want to take extended periods of leave for maternity reasons.

429.

We are also concerned that there could be the argument that the 26-week leave period might be sufficient for the majority of cases - for recovery or health and safety reasons - and that the additional leave could be equally available to either parent should the father choose to take that leave. There is no right and wrong, but we are concerned that there could be that interpretation.

430.

Ms Harbison: From an equality perspective, it is important that we establish how important the role of a father is in relation to the upbringing of children. We are all concerned about the lack of male role models for young children in some instances, and it is important that we encourage fathers, as much as possible, to become involved at a very early stage with the growth and development of their child. While the legislation may be for the health and welfare of the mother, we all need to be concerned about the health and welfare of the child, both psychological and physical.

431.

The Chairperson: As a supplementary to Dr Adamson's question, are you prepared to say in detail what you are recommending? Are you saying that there should be an equal amount of up to 26 weeks paid paternity leave, or are you saying that the 28 weeks should be transferable between the two parents as they choose - that could be 14 weeks each, 15 and 13 weeks each, or any permutation? Are you flexible on that point?

432.

Ms McSorley: The 26 weeks is needed, and welcomed, for the mother from a health and safety and recovery point of view. We would have liked more of a debate about the subsequent 26 weeks, and feel that this could be open to the choice of either parent. In 20% of cases the mother may be the higher earner and, in those circumstances, it would make more economic sense if the mother could go back to work when she was fully recovered and the father could take the remaining leave. However, that would not be a good option for some couples if the leave were unpaid.

433.

The Chairperson: You are not saying that the length of statutory paid paternity leave for both should be the same, but in any subsequent period over and above the 26 weeks leave for the mother, there should be some scope for flexibility.

434.

Ms McSorley: That would be best all round, and some countries have adopted that provision.

435.

Mr R Hutchinson: You have suggested that additional maternity leave should not be dependent on a particular length of service, but what will the administrative burden be on small businesses? Would it be discriminatory against employers wanting to employ, promote or take the risk of a women becoming pregnant, or, if she were pregnant, stopping her getting any further promotion? Are you not putting an unnecessary burden on small businesses?

436.

Ms Harbison: I do not believe that we are. There are ways round that, and there are provisions in the Bill to deal with that. However, I am conscious of the fact that I am speaking to all male audience. This matter is absolutely fundamental to our society, and society must decide the importance of maternity leave. There was a lot of discussion in the press recently about young women putting off having children until they were in their late thirties when it becomes much more difficult for them to conceive and have children. We in Northern Ireland are a long way from not having a replacement rate for our children, but that danger there is. Society should be concerned about the effect that the lack of maternity provision and flexible working is having on women in the workplace.

437.

Mr R Hutchinson: I do not disagree, but my following comments may seem as if I do. Northern Ireland is made up mostly of small businesses - it is a small business culture. Businessmen may agree with you totally, however, with the best will in the world, the practicality is that many small business people will say, "This is not worth it: I am going to cut my losses, and that is it".

438.

Ms Harbison: The legislation says you cannot do that.

439.

Mr R Hutchinson: No, but these are your proposals. My wife and I have had children and we know the trauma of childbirth and so on. I do not necessarily disagree with you, but this creates a terrible burden for the small businessman.

440.

Prof Fitzpatrick: The Regulations will make it complicated for everybody, and we would rather have very simple rules that could be applied easily. However, parts of the economy cannot be excluded from that. In your scenario, either we do not regulate at all, or the Commission gets a flow of people bringing discrimination cases - they suspect that they were not recruited because they were a woman of a particular age. It is swings and roundabouts. There should be discrimination law to deal with those situations, or it should be regulated in a simple, clear and effective fashion, which is what we are proposing.

441.

Mr R Hutchinson: Then that puts the other person off.

442.

Ms McSorley: From my experience of advising employers - mainly small employers - on sex discrimination, I was extremely pleased to see how willing and committed employers, large and small, were to providing equality of opportunity. However, they want, need and expect clarity in relation to what is lawful and what is expected of them, and help, guidance and support to provide that.

443.

We were reassured by the consultation exercise, and the promise of support and guidance for small employers. We are conscious that there will be no financial cost to small businesses in relation to statutory maternity pay and the proposed paternity pay. Maternity and paternity pay are recoverable from the Inland Revenue - plus a 5% compensation payment. Therefore, the main financial costs are more related to how businesses find temporary cover. The Equality Commission hopes that, with the new flexible working conditions and the general move across Europe and the UK towards increased and improved rights for flexible workers, there will be a better-qualified and extended pool of appropriate people for those vacancies that small businesses find it difficult to fill.

444.

Mr R Hutchinson: Employers can reclaim paternity pay. However, employers have visited my office in a panic because they have had to pay out such benefits. Although employers can reclaim the money, some petrified employers have approached me because the money is not paid out on the proper dates and, thus, their cash flow is affected. That system only works if everything runs according to plan, and the problem is that the system does not always work.

445.

Ms Harbison: The legislation should make it work, and that is what people must realise. The Regulations must be clear and must lay responsibility on people to meet their obligations in an appropriate manner, and it should not be beyond the capabilities of the public sector to deliver on that.

446.

The Chairperson: As a point of information, Michelle Gildernew, a Member of the Committee, is currently on maternity leave.

447.

Mr Carrick: During your presentation you mentioned equality and equity, and the need to define the role of the father. We like to think that we have a clear definition of the role of the mother, but we must define the role of the employer in order to avoid situations such as that outlined by Mr Hutchinson. We are trying to develop a social pact to ensure a work/life balance. The Committee has taken evidence from the Federation of Small Businesses and various trade unions and they may propose some amendments. Does the Equality Commission anticipate some amendments to improve the equality aspect of the Bill? In the interests of equality and equity, does the Equality Commission feel that any of the costs that result from the introduction of the Bill should be subsidised by the small business sector of the Northern Ireland economy?

448.

Ms Harbison: This is a societal question, and we are all part of that society. I take Mr Hutchinson's point, but that situation should be manageable; it should not happen. We all have a contribution to make, and it is our social responsibility. Although the legislation should not place an inordinate burden on employers, we must all take a share in the responsibility of protecting future generations.

449.

Mr Carrick: Is it your view that taxpayers, as opposed to individual businesses, should finance the administrative and financial burden of introducing the new elements?

450.

Ms Harbison: That is getting into really deep politics. The commission has not discussed that issue, and I am not sure whether Ms McSorley or Prof Fitzpatrick will want to add anything. My own perspective is that, if we are to address this as a society, politicians must lead us. Politicians must take those decisions, tell us that they are necessary, and persuade the unpersuaded that they are important for the future - especially for the future of Northern Ireland.

451.

Prof Fitzpatrick: All those provisions are based on statutory levels of maternity pay. I studied the Pregnant Workers Directive as it passed through the EU institutions. One unnamed member state was insistent that maternity pay should be at that level. There were long debates and conflicts with the Parliament, for every other state would have paid anything between 50% and 80% of earnings during those periods.

452.

My understanding is that the United Kingdom already has the lowest level of maternity pay in western Europe. Small businesses are competing against larger businesses, perhaps leading to disproportionate effects, but these measures will apply across the United Kingdom. I presume that the Republic of Ireland has similar measures.

453.

A small employer receiving a payback from the state for those payments has the least financial burden of any such employer in Europe where EU Directives apply. We are concerned that the take-up will be low in the United Kingdom. Given the low level of work and wages patterns, it will be even lower for paternity leave than maternity leave. We want more realistic levels of pay, with some money coming from the state and some from the employer.

454.

Mr Carrick: I am not calling the quantum into doubt, for in most cases it will be fully reimbursed. However, I should like to know how small employers would be recompensed for the administrative burden, dislocation and upset associated with the additional cost.

455.

Ms Harbison: Ms McSorley has already covered that. We hope that other measures will provide a means for the gap to be filled. Our great worry is that the take-up will be very low and that the Bill will therefore not have the effect which one would like. From that perspective, it is quite important that there be political leadership and that recognition of the need for such a level of commitment be voiced.

456.

The Chairperson: The Deputy Chairperson asked about amendments. I should be grateful if you could send any potential amendments to the Committee before the end of August, when it will consider whether to amend the Bill in any way. We have asked previous witnesses to do so.

457.

Prof Fitzpatrick: The commission is about to assume jurisdiction over employment discrimination on the grounds of sexual orientation. We are aware that there may in certain situations be complications as to whether it is applied to same-sex as well as opposite-sex partners. We might wish to examine that more closely before giving a written submission on the point. The statutory equality duty applies to sexual orientation. We considered the Committee's equality impact assessment, and there do not seem to be any issues on that point. However, we should like to examine that more closely before giving the Committee a written submission.

458.

Ms Harbison: There may be other areas where we are concerned about deficiencies or what we perceive as such. Does the Committee desire a response by the end of August?

459.

The Chairperson: Yes. The Committee will not meet again until September.

460.

Ms Harbison: We shall let the Committee know one way or the other so that it has a response of some sort.

461.

Mr Dallat: You have heard the Committee's negative concerns about the Bill. You said that you are concerned that there may be a low uptake. We are simply playing catch-up with other communities. How can we put a positive spin on this legislation so that small employers - indeed all employers and employees - appreciate its benefits? The other direction would be for the black economy to take centre stage again. In the past, employers frightened of income tax and national insurance contributions paid wages under the counter. A great deal of time and discussion have gone into the Bill, and if it is to affect people's lives positively, there must be more to it than such concerns as single-sex relationships.

462.

Ms Harbison: Ms McSorley spoke about that. I began by saying that I wanted clarity. One of the Minister's commitments when he introduced the Bill was to give guidance to employers. Guidance and publicity, the sort of work that Ms McSorley has carried out in the former Equal Opportunities Commission (EOC) and now in the Equality Commission, lead us to believe that employers are ready to fulfil their obligations and contribute to society. They do not want to have to take the information home and pore over language that they simply do not understand. They want it in the form of a flow chart showing what they can do and how they should do it point by point. There are ways in which we can encourage and help small employers to meet their obligations; it is incumbent on us all to do so.

463.

Prof Fitzpatrick: The reconciliation of working and family life makes for better workers. If people are not given this sort of leave, it will affect how they work. People will also use sick- or annual-leave provisions to deal with other situations, something that has a knock-on effect on such leave elsewhere. A sensible leave system covering the purposes for which people want time off is better than their taking leave regardless of the rules and self-certifying when the employer knows that they have a newborn baby. Without a proper leave system, people will take annual leave at inconvenient times because of personal circumstances. Developing better employees, and producing a coherent system of leave for the reasons for which people want to take it are aims that apply as much to small employers as to large ones, and we are promoting the new arrangements equally to both.

464.

Mr Dallat: I wish to pursue the matter, for we are entering the old realm of equality. For years, those in professions such as the Civil Service and teaching simply got time off work if there was a crisis at home. That did not apply to people at the lower end of the employment scale. There is now an opportunity for us to provide for everyone, but the Bill seems a rather dull piece of legislation. Where is the mechanism for delivering to those to whom it matters most? I am not talking about people who can get the time off, but those in manual jobs who cannot. I am sorry if that sounds cruel, but it is a perfect example.

465.

Ms Harbison: We have a great many concerns. We have talked long and hard about people in low-paid, low-status jobs, who are some of the most marginalised members of our society. They are entitled to the same rights as anyone else. However, such jobs are not only found with small employers.

466.

Mr Dallat: I am not sure how the matter of small employers entered into the discussion.

467.

Ms Harbison: I am sorry. Perhaps I was mistaken.

468.

Ms McSorley: There is a great deal of informal provision.

469.

Mr Dallat: That is the word that I should have used.

470.

Ms McSorley: The Bill will not require many employers to do any more than they do already. It could be argued that the more positive employers retain their workforces. Publicity will be a major challenge for the Government, as acknowledged in the initial consultations on the work and parents' Green Paper. Consultees were asked about requirements, and all were clear that an education exercise was needed to effect a cultural change on the part of employers and workers. They need guidance and support to enable them to do that. Employers large and small must be reminded of the benefits.

471.

We argue that what is good for large business is also good for small business. In some cases, flexibility can be delivered more easily in smaller concerns. Traditional ways of working sometimes have to be challenged to reach the desired situation. The Bill is a stepping stone to a better position.

472.

Mr McElduff: My concern is for the excluded individuals and categories, and how the different treatment of employees on the part of certain employers can be addressed. Does the failure to get the work/life balance right have health and safety implications?

473.

Prof Fitzpatrick: I mentioned that differential in my opening remarks. The definition of "worker" is very wide. If you are not in business on your own, with customers and clients, then you are a worker. Agency workers such as on-call workers or casual workers of various descriptions may not fit into that definition because of the triangular relationship involved. Having been a tribunal chairman myself, I can say that being defined as an employee depends on the discretion of those sitting.

474.

The most vulnerable members of the workforce are in doubt as to whether they are protected. A tribunal may be required to determine that, but the most vulnerable people in society are least likely to go to tribunal. There are detriment measures in the Bill to deal with people claiming their rights. However, even with those sorts of detriment provisions in place, people in employment may not always attempt to have their rights enforced.

475.

The Equality Commission does not have jurisdiction over those statutes. We should like to be given jurisdiction over such equality-related matters in a single equality Bill, since they are so close to equality questions that people come to us. A casual worker might come to us alleging a case of indirect discrimination, but if the legislation had applied to workers, he or she would not have had to trouble us.

476.

There may be issues related to health and safety. Some aspects of working-time regulations are governed by health and safety inspection. Those rights might be enforced through inspection processes rather than through individuals bringing their cases to tribunal.

477.

The Chairperson: Can you envisage any implications under section 75 of the Northern Ireland Act 1998 arising from the right to request flexible working, which, as drafted, is limited to parents with children under the age of six or disabled children under the age of 18? What about equality issues relating to parents of older children or carers of adults?

478.

Ms Harbison: We are concerned about that and about extending provision only to parents of children under six. It raises issues under section 75.

479.

Ms McSorley: In our submission we said that we should like to see the right being made available to parents of children of compulsory school age. There was a suggestion in the Bill that Regulations could provide for an alternative cut-off point. The Commission certainly feels that the right should be made available in relation to disabled children while they remain dependent.

480.

Mr Carrick: I should like to ask a question on the employee-versus-worker issue. Should that be the basis of an amendment? If so, would it cover self-employed workers? Would you have to divide those who work for an employer from those who work for themselves? Does that not pose a problem?

481.

Prof Fitzpatrick: It still poses a problem, but it catches many casual workers. Employment law has not developed to meet the variety of employment relationships that have proliferated over the past 10 years. There is a genuine question concerning people who might be self-employed for tax purposes and who are still not in a client relationship with the person employing them - they would be included as "workers" under the definition.

482.

The legislation moves the goalposts so that there is much less controversy. It catches some very vulnerable people who are clearly not employees but workers. It tries to draw the line at the genuine self-employed rather than those who have subservient relationships of various descriptions without coming within the definition of "employee".

483.

Mr Carrick: If we use the term "worker", we specifically exclude the self-employed unless we can find a mechanism to include them. It has its origin in the Inland Revenue definition, which is that of a relationship between master and servant. Is that a definition with which you go along?

484.

Prof Fitzpatrick: That is the definition of an "employee". Terms such as "mutuality of obligation" cater for people such as casual workers who need not legally turn up or be employed. However, they do indeed turn up, for they need the work and are employed when they do so.

485.

That level of legal semantics means that quite vulnerable people are not protected in the same way as more established workers. On the equality front, though we cannot say for sure, we suspect that many of those in more vulnerable positions are women. Such women are therefore losing out. With so many other areas of employment law being driven by the term "worker", it is disappointing that the Bill is returning to the term "employee". "Worker" would be much more consistent and appropriate.

486.

Mr Carrick: Do you not feel strong enough to suggest an amendment?

487.

Prof Fitzpatrick: We should be perfectly happy to propose one to you.

488.

The Chairperson: Thank you. That was very helpful.

Thursday 5 September 2002

Dr Birnie (Chairperson)

Mr Carrick (Deputy Chairperson)

Dr Adamson

Mrs Carson

Mr Dallat

Ms Gildernew

Mr Hilditch

Mr R Hutchinson

Ms McWilliams

Mr Roy Gamble ) Department for Employment
and Learning

Mr William Caldwell )

Ms Eileen Regan ) Assembly Research and Library Services

489.

The Chairperson: We will consider the general principles of the amendments this afternoon. It remains to be seen whether we will complete a clause-by-clause consideration today. Eileen Regan of Assembly Research and Library unit and Information provided the paper at tab 4a of the Committee's information pack in response to legal and statistical questions that I asked in August about possible amendments. I do not propose to talk about the paper now, but I will refer to it during our discussion of certain amendments because it expands on certain points and provides relevant evidence.

490.

In tab 4h the Minister outlines her proposal to introduce two amendments during the Consideration Stage. The first will create an exemption with respect to the right to request flexible working hours for persons who work in the armed forces. The second would introduce the Labour Relations Agency to arbitrate in cases in which there is dispute over a request for flexibility.

491.

Mr Carrick: Do the armed forces include the Territorial Army?

492.

Mr Gamble: I am not sure. The amendment was made, at the request of the Ministry of Defence, to the corresponding Employment Act 2002 in Great Britain. It is designed to deal with problems that arise when staff are required to carry out activity immediately, for example, in national emergencies, for example, if the Army were sent overseas. I will have to check which organisations the armed forces comprise.

493.

The Chairperson: We shall write to the Minister to clarify that point.

494.

Ms McWilliams: Surely the amendment would apply to other categories of emergency workers such as ambulance crews and fire fighters?

495.

Mr Gamble: The emergency services have schedules and arrangements for dealing with emergencies: that is their job. Presumably the armed forces deal with unforeseen circumstances that involve going overseas with little notice.

496.

Ms McWilliams: Would the amendment apply only in relation to deployment overseas?

497.

Mr Gamble: I do not know: it could be used for internal deployment also. That is not specified.

498.

Ms McWilliams: You said that it was designed to cover emergencies overseas. The other issue would be that it relates to European Directives through which other European countries have exempted their armed forces.

499.

Mr Gamble: I do not think this amendment is related to a European ruling.

500.

Ms McWilliams: European countries have looked at the issue.

501.

Mr Gamble: I do not know the answer to that.

502.

The Chairperson: Do you want us to pursue that with the Minister?

503.

Ms McWilliams: Yes.

504.

Mrs Carson: In the second amendment proposed by the Minister, the Labour Relations Agency would be available as an alternative to the industrial tribunal system. Would cases go to the industrial tribunal system first and go to the Labour Relations Agency only if the system were full? Would people be given choice of arbitration? Who would make the decision?

505.

Mr Gamble: The Labour Relations Agency recently introduced an arbitration scheme for cases of unfair dismissal. The rules of the scheme state that if you choose that scheme you give up your right to go to a tribunal. It is a voluntary scheme; both parties in a dispute would decide whether to use that procedure or a tribunal.

506.

Mrs Carson: Therefore it would be an either/or situation.

507.

Mr Gamble: Yes.

508.

The Chairperson: Before discussing possible amendments, or amendments in principle, I stress that much of the Bill is extremely welcome, in three respects: first, the extension to maternity leave; secondly, the introduction of new rights relating to paternity and adoption leave, and thirdly, the obligation on employers to consider seriously requests for flexible working. The provisions that we are examining mirror those in the Employment Act 2002, which has already been enacted in Westminster.

509.

Before we look at the amendments I would like the Committee's agreement that we seek an extension to the Committee Stage, if only as a safety net that we may not have to use. At the moment the Committee Stage ends on 20 September 2002. I would like the Committee's approval to seek an extension until 18 October 2002.

510.

Members indicated assent

511.

The Chairperson: Let us discuss whether there should be amendments to the Bill, and, if there is time, we shall then carry out a clause-by-clause consideration. Do members have any suggestions or thoughts about amendments?

512.

Dr Adamson: Perhaps the term "employee" should be changed to "worker".

513.

The Chairperson: How do members feel about that? There are a series of pros and cons to such an amendment. The research paper provided by the Assembly's research team gives some background on that. The argument for it would be that it would incorporate some of the grey areas - in the last 10 to 20 years the way in which employment contracts are defined has changed. The use of the term "worker" would be perceived as more equitable, since a disproportionate number of those in the grey categories, who fall outside the definition of employee but are defined as a "worker", are women. A third argument for such an amendment might be that it anticipates an inevitable change, perhaps as a result of European legislation.

514.

The arguments against are that it might close off an element of business flexibility; that it would impose more costs on small firms; and that there is an ongoing consultation on the definition of "employment" in the context of various types of employment rights.

515.

The Assembly Research and Library team's paper attempts to estimate what the additional cost of extending the definition from "employee" to "worker" would be. The estimates have to be rough and ready, because the data is not readily available.

516.

Mrs Carson: The definitions of "employee" and "worker" are completely different. An employee is someone who has a contract of employment. The term "worker" may include part-time and seasonal staff, therefore their inclusion in the Bill could present many difficulties to small businesses. Even someone who does relief milking on a part-time basis would be entitled to paternity or maternity pay, and that might be the last straw for a small business. We must think carefully about changing the terminology.

517.

The Chairperson: The Northern Ireland Equality Commission, which was one of the three groups that gave evidence to us, suggested such an amendment. They argued that in employment law each statute often adopted a different approach to defining the category that should benefit from such legislation. There would be a case for using the term "worker", because it was used in the Employment Rights (Northern Ireland) Order 1996, but other legislation, such as the National Minimum Wage Act 1998 uses a different definition. We have a choice to make.

518.

Mrs Carson: What definitions are used in the rest of the United Kingdom or in the European Union?

519.

The Chairperson: In Great Britain the term "employee" is used. The Bill as it stands is almost identical to the provisions of the Employment Act 2002, which was enacted ahead of us. If we amend this Bill in the way that has been suggested, from "employee" to "worker", we will have a different definition from that used in England, Scotland and Wales. As for other European countries, I do not know the answer to your question. You would need to seek advice from Assembly Research and Library , and it might be quite difficult to get a clear comparison.

520.

Mrs Carson: The Committee had representation from small firms and businesses, and coping with such an amendment might just be the last straw. We have to consider the matter carefully.

521.

The Chairperson: I am trying to work out whether there is a consensus among Committee members on the issue? Does the Committee wish to retain the term "employee", which would mean that employees only would benefit from its provisions, or should we change it to "worker", which would incorporate additional categories, that is to say, greyer areas in respect of which the contractual status is not that of a traditional employment contract?

522.

Mr Carrick: We should not adopt the term "worker" as opposed to "employee". The term "worker" needs to be carefully defined because it could include self-employed people and, as Mrs Carson mentioned, seasonal workers, particularly in rural communities. To use the term "worker" without carefully defining it widens the scope of the Bill, with the result that there would be a catch-all situation. I am unsure whether we seek such an outcome.

523.

The Chairperson: If we adopted the term "worker" we would have to create our own definition, although some statutes contain definitions. The Equality Commission suggested using the Employment Rights (Northern Ireland) Order 1996. The paper by Assembly Research and Library gives other definitions, as does some recent 1990s legislation. The Committee would have choose a preferred definition; for example, would we include temporary or agency workers, home workers, and casual workers? Those categories fall within only some of the definitions. I am not detecting among members a particularly strong feeling in favour of moving beyond the term "employee" to "worker".

524.

Mr Dallat: I am sure that the inclination would be to try to include as many groups as possible to maximise equality. In the absence of much of the necessary information it is very difficult to be sure.

525.

The Chairperson: The information is here. We have to make a judgement based on the findings of Assembly Research and the evidence of Committee witnesses.

526.

Mr Dallat: The Equality Commission did suggest that the Committee propose the amendment of the Bill to include the term "worker", and I suggest that we do so.

527.

Mr Carrick: If the Committee moves beyond the understood definition of "employee" to adopt the wider term "worker", I envisage huge problems as regards the regulatory regime and the policing of the exercise.

528.

The Chairperson: Possibly, but the courts will always have to act based on the definition that they are given. Undoubtedly, cases will be brought by people who feel that they are "employees" despite the fact that their employer says that technically they are not so because of the terms of their contract, or because they do not have a contract. To change the definition does not necessarily mean to create a need for more policing; it would simply be done on a different basis.

529.

Mr Carrick: Employers will handle the administrative arrangements of the scheme; however, the proposed definition of "worker" would also include self-employed people.

530.

The Chairperson: That is an interesting point. My reading is that the self-employed would not be included within the category of worker unless we specifically added them in.

531.

Mr Carrick: Subcontractors in the construction industry, for example, are regarded as self-employed for National Insurance purposes.

532.

Mr Dallat: You cannot pin too much on National Insurance considerations. I know from personal experience that local councillors, for example, pay National Insurance contributions, but the law clearly states that they do not have the protection that other employees receive.

533.

The Chairperson: That is an interesting example in its own right. It is a revelation to me that councillors are not employees.

534.

Mr Carrick: There would be merit in establishing a consistent definition. There seems to be a difference of emphasis even between the Inland Revenue and National Insurance; the principle of a master and servant relationship applies.

535.

The Chairperson: All definitions create a margin at the edge of uncertainty. I would incline to the definition "worker", which encompasses a broader range of people. I suspect that the law will move in that direction in anyway, so why not try to anticipate those changes? The Northern Ireland Equality Commission has argued that there are definitions of workers in some 1990s legislation.

536.

Mr Carrick: To give another illustration, farmers' sons and daughters who work at home are regarded as self-employed for National Insurance purposes. Will they be - [Interruption]

537.

Mr Dallat: The two terms are interchangeable. The Transport and General Workers Union uses the term "worker" whereas other unions use the term "employee". However, if the term "worker" is likely to help more people, we should use it.

538.

The Chairperson: If most members feel that we should move to "worker" as opposed to "employee", we will have to decide which categories to include under that definition, such as agency staff, casual workers and home workers. There may be others of which I am not aware.

539.

Mr Carrick: Before considering that issue at our next meeting, is it possible to have some guidance on widening the definition? As Mr Dallat said, there is a lack of information.

540.

The Chairperson: Some of the guidance is available in tab 4a of the information pack, and in particular the answer to question 4: "Is the term "worker" as opposed to "employee" sufficiently robust in employment law?"

541.

The Assembly Research and Library team has listed about half a dozen pieces of legislation from the 1990s that used definitions of "worker". They are photocopied at the back of that section in the Committee's information pack. There are some differences. We must consider those and mix and match as appropriate. Does the Committee wish to adopt the wider definition, or are you content with "employee"?

542.

Mrs Carson: Were there difficulties with the definition "employee" in the rest of the United Kingdom when the Bill was enacted? What was their reason for keeping the term "employee" as opposed to "worker"? I am sure that the Bill was equality-proofed in the rest of the United Kingdom. I can see a minefield of work. We would not have the time to pinpoint every category to be included under the new definition.

543.

The Chairperson: It would be difficult. No piece of legislation is ever, in practice, exhaustive, so we could list several categories. In practice, anomalies requiring change will always arise, but obviously we must make as good a job as possible at the time.

544.

There is extensive consultation around the creation of the Employment Act in GB and the consultation here. The Government in London would claim that they had struck a reasonable compromise and balance. Obviously, you can either agree or disagree with that. Various views are being expressed. I am always reluctant to go to a division, but we may have to do so to get the position crystal clear.

545.

Mr Dallat: Perhaps you should recap for Ms Gildernew, who has just come in.

546.

The Chairperson: We are talking about amendments in principle. The first is the suggestion that instead of using the term "employee", the term "worker" be used, albeit that that would be subject to further definition later in the legislation, which we will discuss in due course. Obviously, there are pros and cons. The proposed definition widens the number of persons who benefit under the Bill. It might be perceived as more equitable in that some of the greyer areas of contractual statement in employment probably have a disproportionate representation of women compared to men. It may involve anticipating changes that will occur anyway in this area of legislation, but, on the negative side, it will cost more money. There will be more burdens on business and there is an ongoing departmental consultation on the definition of employment status with respect to employment rights.

547.

Mr Carrick: The administration of the scheme under the Employment Bill will be at national level, not at regional level. Any change in the fundamentals of the Bill regarding who does and does not qualify will create huge administration problems at national level.

548.

Mrs Carson: At our meeting yesterday, I said that some industrialists are already working towards the United Kingdom system. They reckon that that system will be adopted. They have found problems with it and say that it will be a minefield. If we widen the legislation to include workers, the timeframe here will be longer. However, as the Deputy Chairperson said, we must work with the consensus of the rest of the legislation area.

549.

Ms Gildernew: I am in favour of using the term "worker". The aim is to provide flexible working arrangements for parents. It may be more complicated, it may result in more work for the Committee and it may cost more; however, we have a duty to ensure that we get the best package for people. Not every worker is necessarily an employee. Because more women fall into the category of worker, we have a social obligation to provide the best legislation. Those who come under the category of "worker" will need these working and leave arrangements most. Therefore, it is important that we get it right, and if that means extra work, so be it. That is not a problem.

550.

Mr Carrick: There are arguments on both sides. I want to know the practicalities and the additional costs involved in widening the definition.

551.

The Chairperson: I anticipated that sort of question and asked Assembly Research and Library to estimate the additional costs. Rough estimates are given at tab 4(a). Question 3 on page 2 of Ms Regan's paper shows that by rough multiplication it can be calculated that an extra £3 million will be required to set up the scheme, plus £1 million extra in each subsequent year. That was based on the assumption that in the Northern Ireland labour force there is approximately 16% more workers than there are employees - there are some 600,000 employees compared with 700,000 workers, so you multiply up by one-sixth. However, that is a rough calculation, a point that is made in the answer. If anything, the additional costs might be smaller.

552.

Those sums - while not absolute - are small in relation to the size of the Northern Ireland economy, though there may be measurement problems. Before the Committee votes - and I have to work out what form that will take - I would like Mr Gamble to comment on why "employee" was used in the Bill rather than "worker". A range of definitions is included in legislation already in force, so why was "employee" used?

553.

Mr Gamble: Many people, such as part-time workers and people on fixed-term contracts, will be included in the definition "employee". Anyone with a recognised employment relationship will be included. It is a fairly wide term, but the issue of employment status is complicated. People know what an employee is but are not sure of some of the other definitions. Different definitions have been used for different purposes and different legislation.

554.

A study and a consultation about employee status and untypical employment arrangements are under way. It was felt that there was so much uncertainty about other forms of working arrangements that it was better to use the term "employee", because most people are familiar with it. We will then consider the findings of the detailed work being carried out to understand the other forms of working arrangement. There is a difficulty in understanding how many other types of arrangement there are and what forms they take.

555.

Ms McWilliams: Statutory legislation provides definitions. Will you address the current pieces of legislation that use the term "worker"? Why was "worker" rather than "employee" used in most statute law from 1995? Is it because the trend in the labour market is changing so rapidly?

556.

Mr Gamble: I do not understand your question.

557.

Ms McWilliams: As shown on page three of tab 4(a), the Employment Rights (Northern Ireland) Order 1996, the Employment Relations (Northern Ireland) Order 1999, Working Time Regulations (Northern Ireland) 1998, the National Minimum Wage Act 1998, the National Minimum Wage Regulations 1999 and the Trade Union and Labour Relations (Northern Ireland) Order 1995 all refer to "worker". It is not the case that it is not in statute and has not been introduced into legislation; it has been. The probable reason for that is that these new pieces of legislation had to take on board the different circumstances under which different people are employed.

558.

Mr Caldwell: It appears that those pieces of legislation directly apply minimum standards, many of which emanate from European level. Those minimum standards would apply to any individual working in any capacity, whereas the Employment Bill's proposals do not emanate purely from any European Directive. They are new rights that will apply to a range of individuals.

559.

They are not minimum rights that everyone in every type of employment should necessarily enjoy. After all, there is the question of the relationship between employer and employee. It is not a case of an employer imposing rules on employees or an employee making demands on an employer. It is intended to be an area in which there is mutual agreement. If "employee" were changed to "worker", the intention of the Bill would change massively. The term "worker" would include people whose inclusion in the scheme was not anticipated.

560.

The Chairperson: We must try to decide whether the Committee wants to propose an amendment. This is one of the broader amendments; we may vote on smaller ones later.

561.

Question put, That employee be changed to worker in the Employment Bill.

The Committee divided: Ayes 5; Noes 4.

AYES: Ian Adamson, Esmond Birnie, John Dallat, Michelle Gildernew and Monica McWilliams.

NOES: Mervyn Carrick, Joan Carson, David Hilditch and Roger Hutchinson.

562.

Question accordingly agreed to.

563.

The Chairperson: Shall we now discuss the categories that would be included, or do you want to return to that after having had a further paper from Assembly Research and Library Services? If we opt for "worker", we must include some details on the definition - do we include home workers, casual workers, agency workers and so forth?

564.

Mrs Carson: We will have to leave that for someone to research for us. We do not have enough time today to come up with all the categories.

565.

The Chairperson: We will probably return to that next week. In the intermediary time you could look again at Eileen Regan's paper, particularly question four on pages three and four.

566.

Question four on pages three and four mentions the types of legislation that include the term "worker". At the back are photocopies of the legislation. The definition of "worker" in that legislation will give you a range of the options available. One does not necessarily have to follow them, but a combination may be useful.

567.

Dr Adamson: The age limit that applies to disabled children should be reduced.

568.

The Chairperson: That is a possible amendment. It relates to the right to request flexible working conditions. As it stands, the Bill suggests that parents whose children have not yet reached the age of six have the right to request flexible working conditions. It is a right to request, not a right to such conditions.

569.

The Bill also suggests that where the child is disabled and has not reached the age of 18 the same provision should exist. It could be argued that since this is designed to help parents who have dependent on them young or disabled people, the age limit is not relevant and should be removed. Therefore a younger person who is dependent and disabled, regardless of age, should be included in the provision. If that were the case more parents would be helped, as would the dependants of such parents.

570.

There is an argument against that amendment - the cost. When I first considered this amendment, I felt that it looked reasonable because the numbers involved might be small. However, the latest advice from the Assembly Research and Library Services - and it is difficult to get precise figures - is that there are many disabled people in Northern Ireland. Unfortunately, Ms Regan did not have that data when she wrote the paper at tab 4(a).

571.

The Committee Clerk: It depends on the definition of "dependants" and if they are "younger".

572.

The Chairperson: Surely that is true by definition.

573.

The Committee Clerk: It would be useful to speak to Ms Regan about that.

574.

The Chairperson: How do members feel about that as a possible amendment? Would you like to hear some statistical and contextual background from the researcher about the disabled and the right to request flexible working.

575.

Members indicated assent.

576.

Mr Dallat: There is official and unofficial adoption. The adoption process is long and protracted, and it remains unofficial for a long time. The term is accepted in other parts of law.

577.

The Chairperson: Can any of the officials comment on that? There may be a grey area before an adoption is officially cleared, and the prospective adopters would need help during that period.

578.

Mr Gamble: I do not feel qualified to comment on that.

579.

As departmental officials, our sitting at this table may not serve a purpose. This is a Committee debate and we will clarify points, where possible, but we seem to be addressed as if we were giving evidence.

580.

The Chairperson: Yes, I am aware of that. Are you happy to remain in the room, and if there is a technical problem - albeit there is always the problem of how you define technical - as opposed to - [Interruption].

581.

Mr Gamble: I am not seeking to be obstructive in any way, but we do not want to be part of the Committee's debate. The Committee has to make to the Minister submissions about which she will be seeking our advice. We could be compromised if we took part in this debate.

582.

The Chairperson: Would you prefer to be away from the table?

583.

Mr Gamble: I would prefer to be called at your discretion.

584.

The Chairperson: Thank you for your help so far.

585.

Thank you for coming Ms Regan, and thank you for your paper, which attempts to answer some of the questions that we thought might arise about amendments. We want to discuss the possibility of changing the qualification with respect to parents of disabled children by removing the under-18 age limit. The question therefore arose of how many more parents or families would be affected by such a change, and hence the cost implication. Were you able to get any angle on that?

586.

Ms Regan: The statistics unit in the Research and Library Services provided me with figures. It is difficult to ascertain precise numbers and accuracy. The figures show that there are three different types of statistics that must be looked at to ascertain the potential impact of extending the age limit of disabled dependants beyond 18. They are: disability living allowance (DLA), which is the best allowance for disabled people under 65; attendance allowance, which kicks in for those over 65; and incapacity benefit for the self-employed. The numbers for severe disablement allowance are too small to make any difference to the estimates.

587.

According to the most recently published figures, from May 2002, 145,741 were on DLA and 65,657 were on attendance allowance, making a total of 211,398. That means that one-eighth of the population of Northern Ireland claim one of those financially exclusive benefits. I have been advised that, in estimating the associated costs as regards disability, it is possible to take into account the statistic that 13,000 under 18-year-olds receive DLA. That could be multiplied by a factor of around 16.

588.

We need to know the figure that the Department included in its estimate of the number of employees with disabled children. That could be multiplied by 16 to obtain an estimate of the revised costs. At an estimate, based on the advice of the statistics unit, more than 100,000 potential beneficiaries would result from an expansion to include disabled dependants. If the Committee wishes to have further work done, the statistics unit would be happy to pursue it. Unfortunately, I do not have a background in statistics.

589.

The Chairperson: That would be helpful. Although the position is vague, that information nevertheless indicates that there would be a considerable increase in the numbers affected. My view is that the Committee should probably not consider an amendment at this time. However, if further data to indicate something different became available in the future, we could consider an amendment.

590.

Dr Adamson: I would be happy with that. I was unaware of the figures.

591.

The Chairperson: Are there any other views about disabled flexible working?

592.

Mr Dallat: Did the Equality Commission have any proposed amendments?

593.

The Chairperson: The Equality Commission suggested that the age limit should be removed for disabled children for as long as they are dependants, regardless of whether the child is 18, 25 or 35.

594.

Ms Gildernew: I agree with removing the age limit. Those of us with young children know the necessity of flexible working arrangements, but a disabled child relies on a parent for everything. We must seriously consider cost implications, but we really need to try to make a difference. Perhaps it would be worthwhile for the Minister to look for extra resources to ensure that we make the necessary provision to entitle the parents of disabled children to flexible working leave.

595.

Mr Carrick: The clause gives the parents of young children the right to apply for flexible working arrangements. There is a concession for those with disabled children under eighteen years. If there were no age limit on the definition of a disabled child, would that result in an entitlement for life? A disabled child remains the child of a parent for life.

596.

The Chairperson: Yes, if it can be established that a disabled child is dependent. I do not know whether Ms Regan can comment on the definition of dependency. Would the removal of the age limit mean that the parent of a disabled child would qualify automatically, or could the dependency qualification kick in or change? Could a disabled child cease to be dependent? How would that be proven or established?

597.

Ms Regan: It would depend. I understood that, for disabled dependants, the provision would extend beyond children. That was the intention. Arguably it would depend on how it is defined or described. For example, will it be limited to children or will it be extended beyond that? There are other forms of dependence.

598.

The Chairperson: That is also an issue.

599.

Ms McWilliams: This is such a complex issue, going beyond the current age group, that a separate piece of legislation would be needed, otherwise a huge burden would be put on this Bill. This matter is being examined in other areas of legislation as regards benefit payments, carers' allowances et cetera. We may wish to proceed with what has been agreed, and at another stage examine it as a piece of legislation. There is a lobby group that suggests that. Currently, it seems that parents of able-bodied and disabled children want the existing age groups. In my experience of disability, the state tends to take over the dependency after that.

600.

The Chairperson: Both views have been expressed, and I sense that most members would not favour such an amendment. Does anyone feel strongly that a division should be called?

601.

Mr Dallat: Yes.

602.

The Chairperson: You are a political masochist.

603.

Mrs Carson: How does the issue tie in with the equality agenda? The parents of young people doing A levels and going on to further education might feel that they were discriminated against if there were an age limit. I am acting here as devil's advocate.

604.

The Chairperson: Are you saying that any age limit for any category is discriminatory?

605.

Mrs Carson: It will be thus if it concerns disabled children and young persons without setting an upper age limit for that group. I agree with Monica McWilliams; it has been examined in other areas, and we should perhaps leave it as it is for now. Someone with 17- or 18-year-old children might want flexible working hours.

606.

The Chairperson: When the issue has been dealt with, I shall invite Members to suggest other amendments. An amendment might possibly be made to that; however, it is up to Members to decide whether they wish to examine the definition of "flexible" for non-disabled children. Should the upper age limit remain at six, or should it be higher?

607.

Mr Dallat: The purpose is to underscore the relevance. It concerns not only the disabled child; the family of a disabled child is also disabled. Comparisons must not be made between that situation and that of someone who is studying for A levels. Perhaps it is necessary to be associated with a family to understand the situation.

608.

The Chairperson: That is the counter-argument; however, the Bill as it stands is positively discriminatory or biased towards the parents of disabled children. Most people feel that it is right for the age limit in such cases to be under-18 as opposed to under-six. There is differential treatment, and most people feel that to be appropriate, given Mr Dallat's argument.

609.

The wording of the question is:

"That flexible working be extended to all working parents of disabled children, so long as they are dependants."

Are you happy with that? If the Committee accepts it, the "younger than 18" requirement is removed. A proposer is needed.

610.

Ms McWilliams: I take it that it does not refer to the statistics which Eileen Regan gave earlier and that it is a different category. You initially referred to disability living allowance and incapacity benefit.

611.

Ms Regan: This group is broader.

612.

Ms McWilliams: There are therefore no accurate statistics, and we do not know how many people are affected.

613.

Ms Regan: There are statistics, but those you rely on do not correlate directly with what you seek to do. There is therefore an element of guesswork.

614.

Ms McWilliams: We do not have an accurate record of the number of disabled dependants who are over 18 and still living at home.

615.

The Chairperson: I have a question for the departmental officials. What statistics did the Department have for the number of people who would be affected by a right for parents of disabled children up to the age of 18 to request flexible working hours?

616.

Mr Gamble: The Department conducted a regulatory impact assessment. I do not have it here and I am not sure whether it had to cover that much detail, since such assessments deal with the costs which will be imposed. As this is an arrangement for flexible working hours, the cost of the measure is in question. I do not recall whether the Department used statistics or whether it simply came to a conclusion following the consultation and the suggestions made in that about the age of disabled and non-disabled children whose parents should be entitled to flexible working hours. A consensus emerged that the appropriate age was six for non-disabled children and 18 for disabled children. The decision was probably not made in a scientific way. People cease to be children after their eighteenth birthday, and the Bill concerns children, parenting and employment.

617.

Ms Gildernew: A 22- or 23-year-old who is wheelchair-bound and cannot fend for him- or herself is, to all intents and purposes, a dependent child. Age does not matter, for such people will not be able to get out of their wheelchairs and fend for themselves at the age of 18. Parents still need flexible working hours. The system is so poor at caring for such young people that many parents have had to give up work altogether to look after their children full-time, and there will be many families to whom the arrangements will not apply, since the parents cannot work. A person of 22 who is dependent on their parents is a child, and age should not be a consideration.

618.

Mr Gamble: That matter is for the Committee to decide. The proposal is what is contained in the Bill.

619.

Mrs Carson: Does Mr Gamble know the legal definition of a child?

620.

Ms McWilliams: A child cannot be left unattended below the age of 14.

621.

The Chairperson: This broader area of discussion is drawing us away from the Bill.

622.

Ms McWilliams: It is a fair question, however.

623.

Mrs Carson: Such people are children in every sense but their age. Their parents think of them as children, but what is the legal definition of a child? Social services state that children cannot be left alone until the age of 14, and a child must leave a special school at the age of 19, at which point he or she is no longer considered a child.

624.

Ms McWilliams: That is a different matter, since that is the leaving age for disabled children. A parent may be prosecuted for leaving a child unattended under the age of 14.

625.

Mrs Carson: Can we clear the matter up?

626.

The Chairperson: I am not sure how relevant that is to the Employment Bill, although it is an important issue in its own right.

627.

Ms McWilliams: It is relevant because children coming out of school cannot be left as "latchkey kids", as they were once known. That is the reason for asking for flexible working hours. Children cannot be left "home alone" from the end of the school day until the parent gets home from work. Most parents will require flexibility if they do not wish to pay child-minders to look after that age group. Obviously, they are for children below the age of six. The issue is partly about keeping people in the labour market. In the past, when women had children below that age, they tended to give up work completely.

628.

The Chairperson: We are dealing with an issue that could be covered in another amendment, which we may come to in due course. We are finding it difficult to find the right form of words for the question. Is an 18-year-old disabled child legally defined as a child?

629.

Ms Gildernew: It depends on whether the child is dependent. Your child is always your child, even if he is 30. He is considered a child so long as he depends on the parent.

630.

The Chairperson: I appreciate the point in the social and moral sense. However, the problem is that using a different form of words leaves us open to situations in which the dependants are not the children. For example, they could be a niece or an adopted child.

631.

Ms Gildernew: If they are adopted, they are your children. We are not talking about extended families; we are talking about flexible working hours for parents of children with disabilities who are dependent on them.

632.

The Chairperson: Yes. The issue is whether we can use the word "child" if the person in question is above the age of 16. Is that right?

633.

The Committee Clerk: We could invite the researcher to define children and then discuss the matter further.

634.

Ms Regan: There are several definitions. Does the amendment seek to have a catchment of disabled dependants, or does it focus solely on disabled dependants who are the children of those on whom they depend?

635.

The Chairperson: Yes. That is a good point. Are we considering disabled dependants, which is a broader category than disabled children who are dependent on their parents, or simply disabled children, even though they may not legally be defined as such because they are above the age of 16?

636.

Mr Carrick: Is it not clear that the clause gives parents of young children the right to apply for flexible working hours? Moving outside that area would widen the clause. The parents are the people for whom the clause makes provision.

637.

The Chairperson: We should use that form of words. Should flexible working hours be extended to all working parents of disabled children?

638.

Ms Gildernew: The Equality Commission recommends that a proposed right to request flexible working be extended to parents of disabled children, so long as the children are dependants.

639.

The Chairperson: That sounds like a good form of words.

640.

Mr Carrick: Let me clarify this - when a disabled child reaches the age of 18, another social support system kicks in. Is that right?

641.

Ms McWilliams: Yes. However, if the state takes over, disabled children are not considered dependants of their parents. We know of parents who do not want their children to move into residential or respite homes or whatever accommodation the state offers. It is likely that many parents work shifts - one working days, the other nights - to enable them to care for disabled adult dependants.

642.

Mr Carrick: The key words are "adult dependant". At some point, the child must move from being a child dependant to becoming an adult dependant. That is a critical stage.

643.

Mrs Carson: That happens at the age of 18. Children who attend special schools must move on when they turn 19, as there is no special educational provision for them beyond that age.

644.

The Chairperson: I suggest that we use the same form of words as the Equality Commission. There may be a legal tangle with that, since dependent children are not actually children beyond the age of 18. We should use those words anyway, however. If we agree to the amendment, we shall have to come to terms with that.

645.

Ms McWilliams: Although I use the term "adult dependant", I think that the Equality Commission's wording would cover that group. The Commission intends that disabled children be considered children as long as they are dependent. That would include people with cerebral palsy who may have the mental age of a child of four but a biological age of 44. Therefore, the definition which the Equal Opportunities Commission has suggested would include all those.

646.

Question put, That flexible working be extended to all working parents of disabled children, so long as they are dependants.

The Committee divided: Ayes 3, Noes 4.

AYES: Monica McWilliams, Michelle Gildernew and John Dallat.

NOES: The Chairperson, Dr Ian Adamson, Mervyn Carrick and Roger Hutchinson.

647.

Question accordingly negatived.

648.

The Chairperson: Are there any views on other possible amendments? Obviously, we do not have to make amendments if we not wish to. That in itself is a decision which we can take.

649.

Dr Adamson: I am happy enough with the rest of it.

650.

Ms Gildernew: We should consider other recommendations made by the Equality Commission about flexible working rights for parents of children of school age or under and about the rights of workers who have other care responsibilities.

651.

The Chairperson: We shall deal with those separately. Under the provisions of the Bill, parents of children under six would be eligible to request flexible working arrangements. Ms Gildernew, you suggest that it be amended so that parents would be eligible until their child turns 16. That is a slightly grey area - should we specify the age of 16 or the age at which the child leaves school? That secondary issue could be clarified.

652.

Ms Gildernew: A 16-year-old is capable of looking after him- or herself.

653.

The Chairperson: My point is that a 16-year-old could still be at school.

654.

Ms Gildernew: But compulsory schooling lasts only until the pupil is 16.

655.

The Chairperson: The other issue concerns other categories of carers. We sought advice from the Assembly Research and Library unit department, and question 5 in section 4(a) of the document asks:

"If the age limit for children was raised from 6 to 16 to allow working parents to request flexible working, how many more people would be affected?"

656.

Under the existing suggested provision, 120,000 employees are affected. It is estimated that there would be an increase of approximately 70% to about 200,000. The costs of the Bill would obviously be increased because of the greater numbers involved.

657.

Mr Carrick: I have reservations about increasing the age limit because of the potential impact on small businesses. We are asking small businesses to embrace new circumstances wherein they must seriously consider a request for flexible working arrangements. The existing provision in the Bill for an age limit of five or six - or 18 for disabled children - will impact upon small businesses and make it difficult for them to accommodate the new arrangements. If the age limit were to be increased to 16, it would place an unbearable burden on them.

658.

Mr Dallat: The counter-argument is that the effects could be measured in other ways. If parents had flexible working arrangements, juvenile vandalism, drug addiction, attacks on small businesses, joyriding and other social problems could well be curtailed, and standards of literacy and numeracy could be raised through homework. There are more arguments for raising the age limit than there are against doing so.

659.

Ms Gildernew: Mrs Carson mentioned the case of the local factory which was forced to close because the owners were unable to find employees. If businesses were a little more sympathetic to parents' needs, there would no recruitment problem. They could employ people to work during school hours and be more flexible about working hours when the children come home from school. The proposals could help small businesses.

660.

Mr Carrick: I wish that I could agree with that theoretical assessment, but it flies in the face of existing evidence. Many parents already stay at home, and yet young people run riot in the street. The new arrangements are not the answer to the problem.

661.

Ms McWilliams: The figures may exaggerate the case. Many employers already offer flexible hours. The figures include those employers, not just those who are new to the idea. We do not know how many parents would be offered flexible working hours for the first time. The Civil Service is a perfect example of employment where flexible working hours currently exist.

662.

The Chairperson: That is true. I do not know if Eileen Regan would want to add to anything in her paper, but all those statistics must be "back of the envelope", since the available data are not that good. Monica McWilliams's point is correct; some flexibility already exists.

663.

Ms Regan: Personnel in the Statistics Unit would echo the concern about the amount of guesswork involved.

664.

Mr Carrick: Is it not true that many of the flexible working arrangements involve being able to start within the first one or two hours and cease within the last two hours of the working day? Is that not the current trend? That restriction exists, and the practice is not necessarily the answer which the Employment Bill is looking for when seeking to offer parents of young children flexible working hours.

665.

Ms McWilliams: No. It gives that opportunity to others. One advantage of offering flexible hours is that it gives parents the ability to take children to school and to leave work earlier so they need not pay huge childminding costs.

666.

Mr Carrick: My question was whether that was not flexible enough. Are those arrangements - starting in the first two normal working hours and ceasing in the last two hours - flexible enough to address the domestic issue?

667.

Ms McWilliams: There is also job-sharing and part-time working, which could be considered flexible. The whole labour market is moving towards greater flexibility, but under different names. Some are measured in hours, some in categories of jobs.

668.

Question put, That the right to request flexible working be extended to all parents of children under the compulsory school-leaving age.

The Committee divided: Ayes 3, Noes 5.

AYES: John Dallat, Michelle Gildernew and Monica McWilliams.

NOES: The Chairperson, Mervyn Carrick, Joan Carson, David Hilditch and Roger Hutchinson.

669.

Question accordingly negatived.

670.

The Chairperson: The other area of possible broad amendment, which Michelle Gildernew suggested earlier, was that the right to request flexible working be extended to employees who have other caring responsibilities, for example in respect of elderly parents.

671.

Ms McWilliams: This is known as an employment Bill for parents. In some instances, you are moving to the issue of grandparents. Are they a category of parents? People may care for someone else's parents rather than their own. You are talking about carers as opposed to parents. That moves beyond the legislation's remit.

672.

The Chairperson: Arguably, it does. However, some would say that it does so in a good sense. That is open for us to judge.

673.

Mr Carrick: I should also pose that question. Is it a complement?

674.

The Chairperson: That is a good technical point. Does anyone have any other comments on that? I did not seek statistical advice on the point, but I imagine the answer would once again be that we do not know the precise numbers involved, but that they would be considerable. It is difficult to be exact. Our understanding is that legislation on caring responsibilities other than the relationship between parent and child may be forthcoming. Can the officials tell the Committee whether such legislation is pending?

675.

Mr Gamble: I am not aware of any such legislation coming from my Department.

676.

Mr Caldwell: The Department of Employment and Learning is not working on it. However, the Bill is really about working parents - it stems from consultation on work and parenting.

677.

The Chairperson: The Committee must decide whether to try to squeeze the provision into this Bill or propose separate legislation. Any Member or Committee can sponsor any legislation it wishes, although they would be hard pressed to find time to do so at present.

678.

Ms McWilliams: In addition to what the Committee has heard about work/life balance, the explanatory and financial memorandum says that the Bill was intended to facilitate a balance between "family and work commitments". However, the legislation facilitates a balance between "parenting and work commitments". Had the Bill used the wider definition of family commitments, the issue of looking after elderly relatives could have been included. That is a real issue, because the longer people live, the more the working population will have to take on caring responsibilities. Unfortunately, it goes beyond the remit of the legislation.

679.

The Chairperson: I have been informed that I did not formally announce the result of the vote on extending the right to parent of all children under the school-leaving age. It was ayes 3 and noes 5.

680.

Does the Committee wish to put the question about other carers to a division, or are there members who feel strongly that this Bill is not the place for such provisions?

681.

Ms Gildernew: It should be addressed. I am happy to accept that the Bill is about parents, but the Committee should examine the issue next term.

682.

The Chairperson: The Committee will leave that amendment out but bear in mind that it is a significant area for future legislation. Are there any further possible amendments?

683.

Ms McWilliams: Did the Federation of Small Businesses propose any definitive amendments? I noticed one about the number of employees.

684.

The Chairperson: Everything is in the pack under tab 4(c). The Federation of Small Businesses did not specify amendments; it said that no distinction is drawn between large and small companies. However, it suggests a specific amendment for clause 112(f) on flexible working and mentions that the self-employed are not covered, which is true.

685.

Rather than providing worded amendments, the federation has laid down broad principles, and you can take its comments on board if you wish. Ideally, they would like some sort of amendment saying that the provisions relating to items such as employment and parenting rights should apply only to companies employing more than 50 workers, for example, and a size band would have to be exempted.

686.

There are several arguments against doing that. It would increase the complexity of the Bill, and you would be open to the argument that you have created inequity for two employees in similar circumstances. For example, an employee in a company with 24 workers would not get the right while another in a company employing 26 would. The parity with Great Britain would be broken with respect to the way that the Inland Revenue system works in this area. Nevertheless, there is an argument about the burden on small and medium-sized enterprises, and that should be taken seriously.

687.

Ms McWilliams: In the light of the amendments which we have proposed, I have a question inspired by an issue raised by Jones and Cassidy Solicitors in relation to their expert knowledge of anti-discrimination law. Are there categories which suggest that the Bill be left as it is, now that we have eliminated some categories covered by anti-discrimination law?

688.

The Chairperson: Are you talking about the Bill as it stands?

689.

Ms McWilliams: I am including our amendments. To ensure compliance with anti-discrimination provisions, they are saying that employers are required to consider all requests by employees for flexible working based on balancing work and domestic responsibilities. We have considered the matter as far as we could in the light of parental responsibilities. Discrimination law goes beyond that.

690.

The Chairperson: That is between those with dependants and those without dependants under section 75 of the Northern Ireland Act 1998.

691.

Ms McWilliams: That is right. Has anybody examined the question regarding the equality impact?

692.

The Chairperson: I am sure that we asked the officials a similar question when they gave evidence, but not in the way that it has been couched. How far has the Department considered that, and is the Department confident that the Bill, as it stands, is not vulnerable to some sort of challenge on equality grounds under any of the categories listed in section 75? Did the equality impact assessment produce a convincing result that there were not differential impacts which would be vulnerable to challenge? Sometimes differential impact is allowed if it corrects a perceived or actual imbalance.

693.

Mr Gamble: The equality impact assessment found that the Bill would have no adverse affect on any group.

694.

Mr Caldwell: An assurance has been received that the Bill, as drafted, is in compliance with the Human Rights Act 1998.

695.

The Chairperson: Ms McWilliams referred to the title of the Employment Bill, and we asked the officials about that. There are good reasons for keeping it short, and the tradition is to do so. However, if members have had further thoughts about the matter, can we amend the title?

696.

Ms McWilliams: We can; it has been done in another Committee and accepted by the Department.

697.

The Chairperson: Members may feel that there could be a better description for the Bill.

698.

Ms McWilliams: I proposed the title in question, as it would be good to have short titles for our Bills. Many Bills were being introduced as No. 1, No. 2, No. 3 and No. 4, and that was a bland description of the important work contained in those Bills. The Department of Health, Social Services and Public Safety accepted a different title and named a Bill descriptively. The custom and practice is that the title must be fewer than nine words. We should not need many words to describe what this Bill will do.

699.

The Chairperson: It might prove quite awkward to find an exhaustive form of words. We could have "Parents and Adopters". Do members have any proposals for the title?

700.

Ms Gildernew: What about "Flexible Working Arrangements for Parents"? An adopter is a parent when he or she adopts.

701.

The Chairperson: "Flexible Working Arrangements for Parents".

702.

Ms McWilliams: That title only describes the descriptor. The long title describes what the Bill will do. It could be the "Work/Life Balance Bill" or anything that shows that it is interesting.

703.

The Chairperson: Yes. It would show what the Bill delivers.

704.

Mr Dallat: It could be "Parents and Guardians".

705.

The Chairperson: We have several alternatives: "Flexible Working Arrangements for Parents" or "Work/ Life Balance".

706.

Ms McWilliams: The Bill deals with more than just flexible work, and that is the difficulty with "Flexible Working Arrangements for Parents". It includes adoption leave and extends parental rights in employment. Perhaps we might leave the decision on the title until next week, as it is difficult to come to one now. If we all gave some thought to it, we could come up with a few interesting alternatives to the present two words.

707.

The Chairperson: "Work/Life Balance" has been suggested. We should always check an acronym - WLBA - in case it stands for something threatening or obscene.

708.

Are there any other suggestions or possible amendments?

709.

Mr R Hutchinson: You have given everyone enough time, Mr Chairman.

710.

The Chairperson: That is what I had hoped for. I shall wrap up this section of the meeting.

711.

We have agreed the broad principle of an amendment, changing the term "employee" to "worker". Ms Regan's letter of 4 September to the Committee is relevant to the Equality Commission's evidence. The Equality Commission suggested that we use the definition of "worker", as in the Employment Rights (Northern Ireland) Order 1996. We should need to ask it directly, but I wonder why it went for that definition as opposed to the Employment Relations (Northern Ireland) Order 1999, which seemed to have a broader scope. Perhaps only the commission can answer that question.

712.

Secondly, if we use the word "worker", as opposed to "employee", what categories might we want to include in the definition? Thirdly, it struck me that the definition of "worker" does not include those who are self-employed. Is there any reason for that, and is there anything positive or negative which the Committee must consider before including the self-employed in the definition? Perhaps those are difficult questions to answer at short notice, but the Committee will probably make that amendment and ask the Department for more research on the matter. Other members may have questions too.

713.

Ms Regan: It would be helpful if the Commission could explain its rationale for using the definition from the Employment Rights (Northern Ireland) Order 1996. I imagine that it concerns the scope of the legislation. In relation to the question about who is included in the definition of "worker", the Committee may have certain groups in mind.

714.

The Chairperson: For example, what groups are included in the legislation passed in the 1990s?

715.

Ms Regan: Agency workers and freelancers might be included under a specific definition. The Committee might want to extend the scope of the definition. I have itemised some groups of workers in my written response, including home workers. It may be worthwhile to make more comprehensive comparisons with that last group so that I can spell out some groupings and their extent.

716.

As for including the self-employed, the Committee might want to engage further research, for employment law is a minefield in certain ways, and including them might require a broader definition.

717.

The Chairperson: I am asking you to speculate, but is that why the self-employed have historically been left out? Is it so difficult to define "employees" and "workers" that the law has not reached the point of including the self-employed, or is there another reason?

718.

Ms Regan: It is pure speculation on my part, but I imagine that self-employed people are defined as different from freelancers. However, I would need to research the difference.

719.

The Chairperson: Thank you. As there are no more questions about the legal aspects of that matter, we shall move on. We shall defer the clause-by-clause consideration of the Bill until next week. As the Committee agrees in principle to using the term "worker" instead of "employee", we must go through the Bill and identify the clauses which must be altered. The Committee will also seek the further research which Ms Regan mentioned. As there are no further comments, I should like the thank Mr Gamble and Mr Caldwell for coming to the meeting and Ms Regan and the Assembly researchers for their help.

720.

There is one question about how the Committee should proceed. The two possible amendments which we are discussing are notably the change from "employee" to "worker" and, possibly, the title of the Bill. Do members feel that the Deputy Chairperson and I should seek a meeting with the Minister at a reasonably early stage to make her and the Department aware of the Committee's thinking? The Minister might agree to amend the Bill as she did with the last Bill about the name change of the Department.

721.

Members indicated assent.

Thursday 12 September 2002

Dr Birnie (Chairperson)

Mr Carrick (Deputy Chairperson)

Mr Hilditch

Mr McElduff

Ms Gildernew

Dr Adamson

Mr Gamble ) Department for Employment
and Learning

Mr Caldwell )

722.

The Chairperson: I welcome Mr Gamble and Mr Caldwell from the Department for Employment and Learning.

723.

The Committee has at least three relevant tabled items at this stage. First, there is a letter from the Equality Commission explaining its argument for favouring the term "worker" over "employee". It refers to the Employment Rights (Northern Ireland) Order 1996. It estimates that for Great Britain - figures are not available for Northern Ireland separately - the impact of using the term "worker" would be a 5% increase in the number of people covered by the legislation. Roughly speaking, the same would apply here. It also makes some points about the position of self-employed people.

724.

Secondly, there is a detailed note on the various definitions of the term "worker" that have arisen in the various pieces of legislation passed in the 1990s. I thank the Committee Office for producing that. Agency workers are included in some, but not all, of the definitions; people on training apprenticeships are not included. Those two points are particularly interesting.

725.

Thirdly, there is a research paper by Eileen Regan from the Assembly research and library services.

726.

There are two points to note in the report. First, page 2 contains a list of categories such as casual, seasonal, home, temporary and agency that might come under the heading of "workers" rather than "employees". However, she stresses that that list is not necessarily exhaustive - it is long but in theory it could be longer. Moreover, there may be overlaps, so the categories should not be seen as exclusive. She does not offer those definitions as the correct legal ones. She implies that if we wanted to specify groups we would have to commission further research to ensure that the terminology is correct.

727.

Secondly, she stresses that any amendment to the Employment Bill would affect previous legislation, particularly to social security benefits, and parallel legislation, including the Social Security Bill that is making its passage through the Assembly.

728.

If the Committee wishes, we can ask Hugh Widdis, the Assembly legal adviser, to give us technical advice on legal matters. Likewise, we could also check whether Eileen Regan would be available to meet the Committee. Is the Committee content to do that?

729.

Ms Gildernew: I thought that we agreed last week to proceed with an amendment to the word "worker".

730.

The Chairperson: There are problems with that that I will discuss in a moment. If necessary, we could ask Eileen Regan to talk to the Committee about her paper and answer any questions on it. Similarly, Hugh Widdis could answer questions about the legislative aspects of the Bill. Does the Committee want to call them in?

731.

Mr Carrick: Chairman, perhaps you should complete the submission and the report on your meeting yesterday with the Minister and her officials, and then we should consider what to do.

732.

The Chairperson: I shall call Mr Gamble and Mr Caldwell to answer questions on the rest of the Bill.

733.

I shall summarise my meeting with the Minister, which took place yesterday. We had hoped that both the Deputy Chairperson and I could attend, but that was not possible. The Minister does not seem minded to accept the amendments, although if we could come up with a good satisfactory explanatory title for the Bill that was also reasonably short, she would certainly consider it.

734.

The Minister suggested that there are two main objections to our proposed amendment to change "employee" to worker". We became aware of the first objection before the meeting with the Minister as it was mentioned in Ms Regan's paper; it questioned the extent of the change to the amendment in the range of persons who are eligible for maternity, paternity or adoption benefits. The supporting legislation would subsequently have be amended. It emanates from the Department for Employment and Learning; the Department for Social Development then decides who is eligible and makes arrangements for payment. We became aware of that objection just lately and it must be carefully considered.

735.

The Minister raised the second objection that some who could be defined as workers do not pay National Insurance contributions. That matters because the National Insurance contribution system refunds employers for the maternity, paternity and adoption leave payments. If the scope of these benefits is to be widened to apply to non-National Insurance contribution payers, new legislation would be required to find a means to compensate employers. It is already proving difficult to get this Bill through in the time available; therefore we must consider carefully whether we want to get involved in a matter that would more likely fall into the remit of the Committee for Social Development.

736.

The Minister also stressed the danger of the time factor if the process were to be stretched unduly. I advised the Minister that we were asking for an extension to the Committee Stage, and she warned that if the process ran on too long there was a danger of losing the whole Bill; then there would be no Employment Act. The Minister also pointed out that the Bill contains powers that open up the possibility of the Department's extending the scope of maternity, paternity and adoption rights in future.

737.

The employment status in relation to statutory employment rights consultation ends in mid-December. There is also likely to be a European Directive on temporary or agency workers that all member states would have to apply. Whether that comes into force next year or the following year is not clear at this stage, but it will apply in future. We therefore face two problems: the relationship with other legislatures; and National Insurance contributions. Those were the basis of my meeting with the Minister.

738.

As the Social Security Bill was granted accelerated passage on Monday, amendments to it must be tabled by 4.30 pm today. Therefore we are almost out of time. If the Committee decided to table an amendment, it might stray into the business of another Department. We must decide what we should do. There is a case for the use of "worker" rather than "employee", but given the problems with other consequential amendments and National Insurance contributions, that may be impractical. That is true of the proposed amendment to change the eligibility of maternity, paternity and adoption benefits, which allow for paid leave.

739.

If the Committee does not recommend amendments, there is no reason why its report could not say that, in principle, the use of "worker" as opposed to "employee" must be seriously considered, especially given trends in the labour market and the fact that some workers have employment experience that means that they might as well be employees, even though legally they are not.

740.

There is no reason why the Committee should not contribute to the consultation on employment rights, which finishes in December, by investigating the status of temporary and agency workers. I recommend that the Committee not propose an amendment to the clause on paternity, maternity and adoption leave. There is an argument about the definitions, but it could be difficult to implement the correct changes.

741.

The Bill also provides for the right to request flexible working hours, which is different from maternity, paternity and adoption leave because there is no public expenditure benefit. Therefore the National Insurance contribution system need not come into play. As it is a new right, there is no previous primary legislation, and, therefore, nothing else needs to be amended to support the Bill.

742.

The Committee could agree to run with the definition "employee" for maternity, paternity and adoption leave. However, it could argue that the right to request flexible working should apply to "workers", and, in that case, the term "workers" should be defined. The Committee must decide whether it is worth making that amendment. In a negative sense, it would create a contrast in the Bill. Some provisions would relate to "employees"; others would relate more broadly.

743.

As there is a consultation on employee status and rights, it could be argued that the Committee should reserve judgement until it makes its contribution in December. However, it could also be said that a marker is being put down. There are arguments both ways.

744.

I welcome the departmental officials who will give evidence. Roy Gamble is the assistant secretary of employment rights in the New Deal division and William Caldwell is the Employment Bill team leader.

745.

To sum up yesterday's meeting: although there may be an argument in principle that makes the definition "worker" attractive, it is not practical in the immediate future for most of the Bill. It may be practical for one part of it, but I am not convinced that it is worth changing one part when the consultation process is going on. The Committee should collect evidence on some of those issues to make an informed judgement. During further discussion with the Minister, I countered her points, but it is more useful for me to give a summary of the Minister's arguments. Do members have any comments?

746.

Dr Adamson: I agree with your assessment. Mrs Carson has also communicated her concerns.

747.

The Chairperson: I am aware of that. The Minister gave me a letter and a copy of annexe A that deals with many of those points at length, including the Committee's points on the Minister's proposed amendment on exemption from the right to request flexible working for those serving in the armed forces. There is also a proposed amendment on the Labour Relations Agency, but I did not ask a question on that.

748.

Mr McElduff: A press release, which may have been embargoed until 6 am today, appears to be inconsistent. It appears to suggest that there has been a sudden change of heart on the Chairperson's part in that an amendment of the definition is desirable. Is it in the public domain that the Committee feels that "worker" should be the term used as opposed to "employee"?

749.

The Chairperson: That press release was written earlier in the week when I was unaware of the National Insurance contribution point and the parallel legislation. It reflected my feelings at the time but not now, except insofar as the press release states that there is an argument for the definition "worker" being used, with which I still agree. The problem is a practical one about what can be done in the near future, given that the Social Security Bill received accelerated passage and that the National Insurance contribution system applies to some, but not all, workers.

750.

Mr Carrick: Although the Committee believes that, in principle, the term "worker" should replace "employee", now is not the time to make such a change. The employment legislation should be consolidated and should contain clear definitions of the terms "employee" and "worker".

751.

Mr Chairman, you referred to how this legislation would affect the Department for Social Development. This is a parity measure, and it is important that the definitions are consistent with those in Westminster legislation; otherwise the grey areas will make regulation a nightmare and will create additional problems for employers, particularly small employers. We do not want that to happen.

752.

The social security and National Insurance systems were set up in accordance with the Westminster definitions. We are part of the United Kingdom and any change to the definitions would create administrative difficulties. Therefore there are practical reasons that now is not the time to tinker with the definitions in the Bill.

753.

Ms Gildernew: Last week's discussion was productive, and I agree with the position that the Committee took on the matter. I have listened to the arguments outlining the potential administrative difficulties and the need to retain parity. However, I do not believe that those arguments stand up. As a scrutiny Committee, it is our responsibility to get the best package for the people that we represent. Although I take Mr Carrick's point about small businesses, we must consider the needs of those who stand to benefit from a change in definition. Many of those who fall into the category of "worker" are already disadvantaged - ethnic minorities and casual workers, for example. I believe that we should accept the amendment to the term "worker" and let the Minister and the Committee make their cases to the Assembly.

754.

The Chairperson: I agree with much of what you say. Time permitting, we will deal with the clauses today, and it is open to Members to propose amendments to them. We will see how the Committee feels.

755.

The Minister makes a genuine argument; there are practical barriers to extending the definition, at least in the short to medium term - it is not just a political smokescreen. Regardless of how one feels about the greater equity or apparent greater justice that extending the definition would bring, it is not possible to make such a change because of the National Insurance contribution system. Certain workers do not pay National Insurance contributions. Therefore a system of payments and compensations for employers would have to be put in place, and that would have consequences for other legislation. The Committee must consider the effect that such changes would have on other legislation.

756.

We should have to create another vehicle, and I doubt that we could do that in time. In fact, I am not sure how we could create the necessary vehicle. The consultation affords us the opportunity to make our mark. If the Committee feels strongly, it can collect evidence and make recommendations in the report on the Bill that will be sent to the Assembly. Even if the Committee decides not to agree the amendment, we can make recommendations that point in the direction in which we would like to move. I accept Ms Gildernew's point about the apparent attractiveness of the definition "worker". I was convinced by the argument last week, but I must consider what can be done at present.

757.

Mr McElduff: Is it possible to postpone making a decision on "worker" versus "employee" so that the Committee can take further advice, given that new evidence has emerged?

758.

The Chairperson: Unfortunately, time is short. Members or parties who object strongly to the Committee's report can table an amendment to the Bill. That can be done at any point before the 18 September, and the Committee is seeking an extension of that period until the 18 October.

759.

The Committee Clerk: There is some leeway. However, it depends on the outcome of today's meeting, because the motion has been scheduled for debate next Tuesday, although it does not have to be moved.

760.

The Chairperson: The Committee must deal with a great deal of other business, and members have heard the arguments about the danger of losing the entire Bill through needless delay. I take the point that these are difficult technical issues, and people want time to reflect on them. Does the Committee feel that we should postpone the decision or press on?

761.

Mr McElduff: I ask for a postponement because it could exclude 10% of the workforce.

762.

The Chairperson: I am not sure whether I stressed that annexe A of the Minister's letter estimates that the figure is 5% at most. That estimate may be open to question, but the real figure is probably less than 10%.

763.

Mr Carrick: Given that Members or parties can table an amendment to the Bill if they feel strongly about it, this issue should not be allowed to delay the Committee's consideration of the Bill.

764.

The Committee made a decision about a possible change last week. What is the procedure for changing that decision? Does it require the consent of the majority of Committee members?

765.

The Chairperson: I will take advice on that. However, it is my understanding that if the Committee proceeds to a clause-by-clause consideration, members vote on each clause. At each clause I will invite members to propose amendments by suggesting either new wording for the clause or a change in principle. The precise wording of the clause can be agreed later. Perhaps the Clerk can confirm that?

766.

The Committee Clerk: There is nothing in Standing Orders that prevents a Committee making a change when other evidence becomes available. Last week, the Committee discussed the principles of the Bill; a clause-by-clause consideration is a different matter, but it is ongoing debate.

767.

Mr Carrick: Therefore the Committee is not committed to abide by the decision that was made last week?

768.

The Chairperson: That is correct.

769.

Mr McElduff: If this were a district council, it would take six months to rescind a previous decision.

770.

The Chairperson: I cannot comment on that.

771.

The Committee Clerk: The name-change Bill that became The Department for Employment and Learning Act (Northern Ireland) 2002 was a step backwards.

772.

The Chairperson: I propose that we move to clause-by-clause consideration.

773.

Ms Gildernew: If the Committee will not propose the amendment, will it still recommend that the provision be reconsidered? Even if members do not propose the amendment, can the Committee say that it feels strongly about this and wants it included in future legislation?

774.

The Chairperson: It is up to the Committee, but I agree that we should. We can say what direction we think things should move without proposing an amendment.

775.

Mr Carrick: Not all Committee members are present to give their views.

776.

The Chairperson: The Committee must agree the written report; it is like any other Committee response. The Committee will see the entire document, including minutes, votes and results. Like any other Committee document, members can agree and/or change the wording.

777.

Ms Gildernew: When the Committee brings this to the Assembly for debate, will the Chairperson say that the Committee discussed whether to take the point as a recommendation or as an amendment and that the Committee sought counsel and strongly recommends that, although it may not be practicable now, it be reconsidered in the next Assembly session?

778.

The Chairperson: I have no problem in saying that the Committee recommends that it be considered as part of the consultation on the definition of eligibility for employment rights. The Committee will need a form of words, agreed in the report on the Bill, saying something similar. The Committee will in turn make its own contribution to the consultation before mid-December. It is up to the Committee, if time allows, to collect evidence. We can listen to arguments from the agency/temporary worker sector about whether temporary workers should be given enhanced employment rights.

779.

We will now move to a clause-by-clause consideration of the Bill. The Bill contains 18 clauses and two schedules. Each clause and its subsections must be considered in turn. The Committee has three options: first, to agree that the Committee is content with the clause as drafted; secondly, to agree that the Committee recommends to the Assembly that a clause be amended, with a further option to suggest an amendment; thirdly, to agree that the Committee recommends to the Assembly that a clause be amended and simply state the proposed objective of an amendment rather than suggest its wording. Departmental officials are here to guide us.

780.

Mr McElduff: I hate to go over old ground, but I am uncomfortable that the Committee does not know the definitions of "worker" and "employee". There seems to be consensus, but I am unsure about it. I planned to propose that the Committee use the term "worker", but in an attempt to gain consensus on such a fundamental issue, I suggested that it be postponed. I do not know whether the Committee reached a decision on that.

781.

The Chairperson: I got the impression that most members wanted to proceed. If we delay there is a danger of losing the whole Bill.

782.

Mr McElduff: Perhaps if we had a few days to allow the Committee to get legal advice on "worker" versus "employee". Many of us came to the meeting believing that that was the case. It was proposed and seconded last week.

783.

The Chairperson: The Committee received legal and research advice, some of which was there last week. I am not certain how much information would be uncovered in an additional week. In any case, given that the time in which to table amendments to the Social Security Bill is up in an hour and a half, the problem is less about definition and principle and more about practicality. Some "workers" do not pay National Insurance; therefore it would be difficult to accommodate them. If the feeling of the Committee is that we should delay for a week, I will not rule it out.

784.

Mr Carrick: Further advice might prove contrary to the advice that the Committee has received. There are practical difficulties in implementing the term "worker", and although I do not want to pre-empt it, additional advice is unlikely to alter the situation. Given the question of timing between different pieces of legislation and the practicality of working the scheme throughout the United Kingdom, the problem will remain.

785.

The Chairperson: Are there any comments on clause 1?

786.

Mr Carrick: Clause 1(3)(c) says that the employee

"is entitled to return from leave to a job of a prescribed kind."

787.

That does not necessarily mean the job that he or she left.

788.

The Chairperson: Do you want an answer to that technical question?

789.

Mr Carrick: Yes. It implies that the employee returns to a similar job and that he or she has the option not to return at all. Therefore the employer must keep the position open, even though at the end of the adoption leave the employee may decide not to return to work.

790.

Mr Gamble: The Regulations will deal with most of the detail. However, as in the case of maternity leave, an employee can return from ordinary adoption leave to the job that he or she left. If an employee takes additional adoption leave he or she can come back to the job that he or she left, if that is reasonably practical for the employer. If it is not practical, the employee is entitled to come back to a job that has similar status. The employee is entitled to benefit from any rights that have accrued in the meantime, for example, changes in terms and conditions. If, at some point, the employee decides not to return to work, that changes everything.

791.

Mr Carrick: Is an employee required to give notice if he or she decides not to return to work? Can the employee wait until the end of the leave before informing the employer of that decision?

792.

Mr Gamble: I do not think that there is a period of notice for not returning.

793.

Mr Caldwell: I am not sure whether there is a period of notice. The employee could give notice while on adoption leave, but I do not know whether such a period of notice would be part of the adoption leave or some time after that.

794.

Mr Carrick: It is important that the employee give such notice so that the employer has time to organise a permanent replacement.

795.

Mr Gamble: It is assumed that when someone takes adoption leave of six months or 12 months the employer will make arrangements from the start. The employee must give notice of when the leave will start, so one assumes that the employer would make arrangements then.

796.

Mr Carrick: At that point, the employer would assume that it would be a temporary arrangement.

797.

Mr Gamble: Yes. However, that is not as bad as having no one in place. The temporary employee's employment could be extended, for example. We are still working on the Regulations, and I cannot recall having seen anything that says that the employee must give notice that he or she does not intend to return to work. We will check on that.

798.

Mr Carrick: It is not an unreasonable request.

799.

Mr Gamble: It is a matter for the Regulations.

800.

Mr Carrrick: Nevertheless, they could be amended to take such a contingency into account?

801.

Mr Gamble: We are still working on the Regulations, which will come before the Committee.

802.

Mr Carrick: Clause 1(3)(c) refers to "a job of a prescribed kind". You seem to have divided the adoption leave up, at the end of which one returns to one's job. Then there is the further adoption leave, after which one gives up the right to return to one's own job but is entitled to a similar one.

803.

Mr Gamble: That is the same as maternity leave. Part of the Bill's principle is to keep everything as much of a piece as possible so that employers are not dealing with a variety of terms and conditions, which can be difficult.

804.

Mr Caldwell: If a person takes ordinary adoption leave, not the additional leave, it would be reasonable for the employer to return him or her to the same job once the leave is finished. However, if the employee takes additional adoption leave more time will have elapsed and the employer may have to take alternative measures.

805.

Mr Carrick: Is clause 1 subject to the Regulations?

806.

Mr Caldwell: The Regulations will be put before the Assembly in the usual way. They will be considered in future. However, there are enabling powers to make the Regulations.

807.

808.

The Chairperson: Much of the detail will be in the Regulations, which will come before us in due course.

809.

Mr Carrick: In clause 2 the new article 112A(7) states

"In this Article -

'newborn child' includes a child stillborn after twenty-four weeks of pregnancy;"

810.

Is that consistent with other legislation?

811.

Mr Caldwell: Twenty-four weeks is now accepted.

812.

Clause 2 agreed to.

813.

Mr Carrick: I presume that it refers to the biological father in all cases.

814.

The Chairperson: There is a question about the definition.

815.

Mr Gamble: Under the Regulations, a woman can choose to take paternity pay if a couple adopt a child and the male partner takes adoption leave. There is paternity pay for biological paternity and there is also paternity pay for adoption. It is a difficult concept.

816.

Mr Carrick: Is adoption the only exception to the rule?

817.

Mr Caldwell: No, but it will be set out in the Regulations, which will come before the Assembly in due course. In the case of same sex partners, the care of the child could come from the partner of the biological mother of the child. Therefore a woman could, ironically, avail of paternity leave. However, the relationship with the child will be set out in the Regulations.

818.

Mr Gamble: The important thing is that there is a parenting relationship with the child. It is not simply any family member who could be entitled to paternity leave and pay after the birth of a child. The parenting relationship will be stressed in the Regulations.

819.

Mr Carrick: There could be a mother and a partner, but the partner may not be the father of the child.

820.

Mr Gamble: As I understand it, that partner would be entitled to take paternity leave and pay as long as the parenting relationship and the intention to act as a parent to the child was established.

821.

Mr Carrick: Could the biological father circumvent that?

822.

Mr Caldwell: No, because the relationship with the child would be set out in the Regulations. The person who is assisting the mother with the care of the child will be entitled to paternity leave.

823.

Dr Adamson: Biology is a very difficult concept.

824.

Mr Carrick: I am finding that out.

825.

Mr McElduff: Is there room for a challenge to the word "paternity" in that it presumes male? Dr Adamson could help us out with the Latin.

826.

The Chairperson: Should another term be used as, theoretically, a woman could take paternity leave? Did you consider whether there was any possible form of words that could cover such cases?

827.

Mr Caldwell: The vast majority of cases would be men, and they would probably be the biological fathers. In exceptional circumstances, someone other than a man may avail of paternity pay. However, it would be unnecessary to change the term "paternity" for that minority. Its present application will be defined in the Regulations.

828.

Mr Carrick: In some cases, the biological father pays under the Child Support Agency (CSA). He may support the child financially, but the mother's partner would be doing the parenting, with emphasis on the parenting and not the support.

829.

Mr Gamble: That is my understanding of how we would interpret that.

830.

Mr Caldwell: Care and parenting are important.

831.

Mr Gamble: That applies to a two-week period around the birth of a child; therefore the circumstances that you posit would be unusual but by no means impossible. Leave would be applicable somewhere within eight weeks after the birth of the child. However, it is likely that in most cases the biological father will care for the child.

832.

Mr Carrick: We must not underestimate the ingenuity of people when it comes to social security benefits.

833.

The Chairperson: In the case of fraud, how would you establish who parents the child? It is in the Regulations, and the Department for Employment and Learning or the Department for Social Development will have to work it out and endorse it.

834.

Mr Caldwell: Clause 11 deals with fraud and penalties, and account has been taken in drafting the Bill to cope with abuse of the system.

835.

Dr Adamson: It is more difficult in Papua New Guinea where fathers breastfeed their children.

836.

The Chairperson: I really do not know what to make of that observation. Fortunately, we do not need Statutory Rules to cover such possibilities.

837.

Clause 3 agreed to.

838.

Mr Gamble: Clause 3, article 167ZJ(3)(b) states that

"cases where a person who would not otherwise be an employee for the purposes of this Part of the Act is to be treated as an employee for those purposes."

839.

Regulations may be made to bring that about. It concerns widening the definition, which you mentioned earlier. That will be inserted into the Social Security Contributions and Benefits Act 1992.

840.

I am afraid that there is a slight slip in the Minister's letter that says that the Bill contains a power for us to count other people as employees. That is actually contained in article 24, the "Power to confer rights on individuals", of the Employment Relations (Northern Ireland) Order 1999. That power in the Employment Relations (Northern Ireland) Order 1999 and also that which will be inserted into the Social Security Contributions and Benefits Act 1992 will leave open the option to extend the definition after better understanding of the matter.

841.

The Chairperson: That point was made during the discussion with the Minister yesterday - the enabling power exists for the Department or the Minister to extend those rights in future.

842.

The Chairperson: Does the Committee have comments or observations on clause 4?

843.

Mr Elduff: I am struck by the reference in clause 4 article 167ZL(2)(a) stating

"the conditions are that he is 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."

844.

Is that a barrier to cross-border mobility?

845.

The Chairperson: How would that affect the adoption of children from overseas?

846.

Mr McElduff: I am thinking about this island. People in Newry or Strabane/Lifford have different social interaction and use different routes to travel to and from work from those in Belfast.

847.

The Chairperson: How does the clause deal with that?

848.

Mr Gamble: The clause merely states that the adoption must be done under the adoption law of the United Kingdom. The adopted person can come from anywhere.

849.

Mr Carrick: I would like guidance on the qualifying period, which must be

"for a continuous period of at least 26 weeks ending with the relevant week".

850.

Is that consistent with other parts of employment legislation?

851.

Mr Gamble: Yes. At present, the legislation covers only maternity leave and pay. The length of periods of service for adoption leave and pay and paternity leave and pay mirror the maternity arrangements.

852.

Mr Carrick: Is it the case that the 26 weeks of continuous service are not necessarily 26 weeks of paying National Insurance contributions? Would those who have been employed for 26 weeks for pay below the National Insurance threshold qualify?

853.

Mr Gamble: Yes. People will qualify for adoption leave, but they will not qualify for adoption or paternity pay unless they are above the lower earnings limit. These should be regarded as contributory benefits. If you do not contribute you do not get the benefit. You will be entitled to other social benefits for a period but not these benefits.

854.

Mr Carrick: Let us be clear. To qualify for statutory adoption pay you must have been paying over the minimum National Insurance threshold for 26 weeks continuously before you adopt?

855.

Mr Gamble: Yes.

856.

Clause 4 agreed to.

857.

Mr Carrick: This has been organised through the taxation and PAYE scheme. An employer may be compensated by his National Insurance contributions being reduced. If a small employer's compensation exceeds the National Insurance payable there is scope for the employer to withhold income tax.

858.

Mr Gamble: That is what the clause will do. Under the present arrangements if you owe money to the Inland Revenue it can only be withheld in strict order. If you owe National Insurance contributions and you want to offset some of your contributions you can only take those two sums away. In future, you will be allowed to aggregate what you owe on tax as well as for National Insurance contributions. If the money that you are due to get back for National Insurance is more than your National Insurance contribution you do not have to have a credit with the Inland Revenue. You take off the aggregated sum.

859.

It is supposed to be simpler for employers; they do not have to keep everything in separate columns and boxes. They aggregate what they owe and subtract what they are due to get back from the Inland Revenue and pay the balance instead of doing separate calculations.

860.

Mr Carrick: Does that flexibility extend to student loans?

861.

Mr Gamble: Student loans are included.

862.

Mr Caldwell: It is aimed at reducing the employers' burden.

863.

The Chairperson: Assembly library and research services produced an estimate that the compensation to small firms was 104·5%. That shows that smaller companies - and they are defined by the total National Insurance contributions paid - get more money paid back when they pay into the scheme. That is to cover their administrative costs.

864.

Mr Carrick: At present, there is a convoluted system of compensation for small employers who are paying out statutory sick pay. It is not easy for some of the smaller employers. It is hoped that that will eventually disappear in this flexibility.

865.

Clause 5 agreed to.

866.

Mr Carrick: With regard to clause 6(2)(1), I understand that employers' relief is achieved by withholding the appropriate percentage from the payment, as opposed to any direct payment coming from the Government. Must the small employer make that calculation?

867.

Mr Gamble: Yes. I understand that a percentage would be withheld. It could be an offset.

868.

The Chairperson: What is the offset for larger businesses whose employers are above the threshold?

869.

Mr Caldwell: Ninety-two percent. They make a contribution to the cost.

870.

Mr Carrick: How many small employers are there in Northern Ireland?

871.

How many larger firms will the 92% affect?

872.

Mr Gamble: I do not have those figures. This definition of small employers is different from the one normally used by the Department, which is determined by the number of people employed by a company, not by the national insurance contributions that that company pays. That would have to be checked with the Inland Revenue.

873.

The Chairperson: The Committee would like to examine that data, if possible. I refer the Committee to the research paper produced by Assembly researchers and tabled at last week's meeting. The small employers' relief applies to companies that pay up to £40,000 of national insurance contributions a year. That cannot be translated precisely into a number of employees. However, it is based on an average industrial wage of around £20,000 a year, with payment of 8% national insurance. The yearly contribution is therefore £1,600. When £40,000 is divided by £1,600, it works out at 25 employees.

874.

Mr Carrick: Where did you get the figure of 8%?

875.

The Chairperson: That is the rate of national insurance.

876.

Mr Carrick: I believe that the rate of national insurance is 10%.

877.

The Chairperson: It is 10% at a higher rate which would apply to employers. That is a good point.

878.

Is that the total National Insurance that the company pays, regardless of whether that £40,000 is its worker or employer contribution? Or is it simply the workers' contribution?

879.

Mr Gamble: That is the total that the company pays - its own National Insurance contribution and those of its employees.

880.

The Chairperson: In which case, one should probably reckon on contributions for each person of approximately £3,000 or more, then divide that into the £40,000. That rough calculation applies to companies that employ up to 12 people.

881.

Mr Caldwell: I am not sure whether we estimated the number of employees who would be deemed as small employers under this legislation, because that involves a different way of calculating to the one we normally use.

882.

Mr Gamble: The figure was raised from £20,000 to £40,000 last year for statutory maternity pay purposes, which, if your estimate of £3,000 is correct, would mean it would have excluded only companies of six employees. I am not sure whether that is correct, but the best that we can do is to check it out.

883.

The Chairperson: Although last week's research papers do not directly relate to that point, small businesses are defined as those employing fewer than 50 people. Those small businesses account for over 200,000 employees in Northern Ireland, and the total number of people who work in Northern Ireland is about 700,000.

884.

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

885.

Mr Carrick: That clause merely broadens the documentation that employers who operate the PAYE scheme already maintain.

886.

Mr Caldwell: This is an enabling clause that empowers the Department to make Regulations specifying what records an employer is required to keep, so that in the event of any dispute about employees information the Inland Revenue may ask for that documentation.

887.

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

888.

Mr Caldwell: Clause 8 adds to the existing mechanism. The clause allows the tax commissioners to resolve disputes over employer contributions or a dispute between employer and employee. However, it is hoped that any disputes can be resolved without formally going to those lengths.

889.

The Chairperson: Paragraph 5(b)(4) amends the Order, stating that,

"Regulations under this Article must be made with the concurrence of the Department for Employment and Learning in so far as they relate to statutory paternity pay or statutory adoption pay."

890.

Can you clarify the purpose of the clause?

891.

Mr Caldwell: The Inland Revenue would probably make those Regulations. Regulations on maternity pay would be made with the concurrence of the Department for Social Development. As those new issues are coming from the Department for Employment and Learning, Regulations must be made with the concurrence of that Department.

892.

Mr Gamble: The amendment will be inserted in a social security contributions Order, which is the preserve of the Department for Social Development, but this Department will be consulted because it is introducing the Bill.

893.

The Chairperson: Can you describe the mechanics of that? Will an amendment to the Order go before the Committee for Social Development in the near future, or is it part of the Social Security Bill, which is currently going through the Assembly?

894.

Mr Gamble: I am not sure that I understand. The amendment will be inserted in the Social Security Contributions (Transfer of Functions, etc) (Northern Ireland) Order 1999. Therefore, the Department for Social Development will be required to consult the Department for Employment and Learning in making the Order insofar as it relates to statutory paternity and adoption pay. Have I answered your point?

895.

The Chairperson: I am trying to work out how that was done. Does the Department for Social Development issue or change the Order to reflect what is in the Employment Bill?

896.

Mr Caldwell: No. Once the Bill is passed it becomes part of that Department's legislation. The clause requires the Department for Employment and Learning to be consulted on any regulations that need to be made by the Department for Social Development, the Inland Revenue or other authority.

897.

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

898.

Mr Carrick: I have a concern about non-compliance. There is a reference to the spouse at 9(2)(b). Is it consistent with other law to provide that the spouse can be forced to testify against a person?

899.

Mr Caldwell: That reference to a spouse or partner is simply a mechanism whereby, in unusual circumstances, there is a requirement for the Inland Revenue to make routine enquiries about whether or not people are receiving what they are entitled to. If you are referring to a spouse giving information against a partner, I assume that it is compatible with general law. I have never considered that point before.

900.

Mr Gamble: Is the scenario of a spouse testifying against a partner not confined to criminal law?

901.

Mr Carrick: It may well be. I am open to guidance.

902.

The Chairperson: Perhaps we should seek legal advice on that.

903.

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

904.

Mr McElduff: Would it be appropriate to add the word "knowingly" at 10(1)(a), and subsequently?

905.

The Chairperson: May I ask if that was considered, or why it was not included?

906.

Mr Caldwell: It would not have been considered. We have to have faith in the Parliamentary draftsman as to whether it complies with the legal requirements. I am not sure that the word "knowingly" would add anything.

907.

Mr Gamble: The situation envisaged here is where a request has been made for someone to produce a document. If you fail to produce a document, you do so knowingly. If you have not got the document, you cannot produce it. If you do have it, and fail to produce it, you have failed to comply with a direct request.

908.

Mr McElduff: Twenty-six per cent of adults have literacy problems, and that is only one slant on this point. Apart from that, "knowingly" or "wilfully" comes into play. It is a question of whether someone is being deliberately obstructive or not. Consignia might pose a problem.

909.

The Chairperson: All those points are valid, but it is a question of whether the word should be inserted in a legal sense, and whether it is implied.

910.

Mr McElduff: I think that legally it has material value.

911.

Mr Caldwell: The sanctions that are mentioned in the Bill would not be applied in a draconian fashion. Each case would be considered on its merits. If it became apparent that someone was not wilfully trying to abuse the system or to confuse or mislead the Inland Revenue, draconian sanctions would not be taken against them. However, if someone did not comply, a system would have to be put in place to deal with it.

912.

Mr Carrick: In my experience, the Inland Revenue inspecting officer has discretion, which is exercised in the light of the degree of co-operation, the gravity of the offence and other criteria against which the judgement is made.

913.

The Chairperson: If there are no other questions, I will put the question. If Members feel strongly about a point, they will have an opportunity to express their disagreement. If that is the case, there must be a formal division.

914.

Mr McElduff: I beg to move

915.

That the Committee recommend to the Assembly that the clause be amended as follows: insert

"knowingly"

before the word "fails" in 10(a), (b), 10(3) and 10(6).

Mr McElduff

Dr Birnie, Mr Carrick, Dr Adamson, Mr Hilditch

916.

Question accordingly negatived.

917.

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

918.

The Chairperson: Are there any questions on clause 11?

919.

Mr McElduff: I repeat that I prefer that "knowingly" be included in clause 11(1), to read "Where a person fraudulently, negligently or knowingly". That should be repeated in 11(2), 11(3), 11(4) and 11(5).

920.

Mr Carrick: Those are maximum figures. I should be concerned if they were more proscriptive; however, it is to be hoped that proper discretion will be exercised.

921.

The Chairperson: That point should perhaps be put to officials. It says "a penalty not exceeding" £300 or £3,000 in whichever case. Presumably, that means that there is discretion and the amount could be any sum up to the relevant figure.

922.

Mr Caldwell: Exactly. The penalty is set at a maximum of £3,000, but where someone has made only a slight error, the fine or penalty - if any at all be imposed - reflects the seriousness of the offence.

923.

The Chairperson: The Committee would be interested in the previous record on the size of annual fines imposed for fraudulent claims with respect to maternity pay. Any available data will be of interest; however, it does not affect our view of this Bill.

924.

Is the Committee content to recommend that clause 11 stand part of the Bill?

925.

Mr McElduff: I disagree, in the absence of the word "knowingly".

926.

I beg to move

927.

That the Committee recommend to the Assembly that the clause be amended as follows: insert

928.

a comma and "knowingly"

929.

after the word "fraudulently" in clause 11(1), 11(2), 11(3), 11(4) and 11(5).

Mr McElduff

Dr Birnie, Mr Carrick, Dr Adamson, Mr Hilditch.

930.

Question accordingly negatived.

931.

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

932.

Mr Carrick: Please explain clause 12(3), which substitutes the words

"(7) the Department may make regulations making provision, in relation to the right to retain paragraph (4) (c)".

933.

Mr Caldwell: That clause enables provision to be made for situations in which maternity leave is extended and there are potential combinations of ordinary maternity leave and new types of leave, such as adoption leave. It is quite technical because such situations do not normally arise. There is, however, potential for them in limited circumstances; for example, if maternity leave is extended to one year and the new rights to adoption and paternity leave are introduced. These Regulations outline the contractual benefits and rights to return which apply in specific circumstances.

934.

Mr Carrick: Am I to understand that it will not be explained in the Regulations that initially come before the Committee, but is rather a provision for a future date? The clause refers to seniority, pension rights and similar rights, which last is a fairly broad term; and to terms and conditions of employment on return, which suggests that those could change.

935.

Mr Caldwell: It means that there is a permissive right for the Department to make Regulations if they are deemed necessary. Whether regulations are found to be necessary will depend on future experience.

936.

Mr Carrick: In that case, during maternity leave, could the Department suggest amendments to the terms and conditions of employment agreed by employee and employer?

937.

Mr Caldwell: That is contained in the clause - the Department may make Regulations, which affect maternity leave, for seniority, pension rights and other rights. There is no impetus for that now, but it is a permissive power.

938.

Mr Carrick: Could the Department make an arbitrary decision to do that without consultation?

939.

Mr Caldwell: No.

940.

Mr Gamble: The clause ensures that the rights of women who return from maternity leave have not been eroded in their absence. It amends the Employment Rights (Northern Ireland) Order 1996 to give us the power to make Regulations, which will be Statutory Rules that come before the Assembly. The Assembly would have to agree those either by confirmatory or affirmative resolution.

941.

Mr Carrick: Is it a tool to make the employer conform?

942.

Mr Gamble: No. It will be the same as any other employment rights Regulation. It will provide longer periods of leave and new forms of leave, which may include a combination of adoption leave and maternity leave or additional maternity leave. It is an attempt to ensure that when people return to work after lengthier periods of leave, they find neither their rights eroded nor a perverse situation in which they get better rights because they were on leave for longer. It is a power to make Regulations which will not have effect unless the Assembly agrees. It would be a law like any other - a Statutory Rule, passed by the Assembly.

943.

I am not sure that I understand what you are saying about employers complying with the legislation. Employers are expected to comply with any legislation that the Assembly makes.

944.

Mr Carrick: I understand that the thrust of employment legislation is to protect the rights of the employee. Clause 12(3) replaces paragraph 7 of article 103 of the Employment Rights (Northern Ireland) Order 1996. Has that been inserted to allow the Department to go beyond that at some point and impose something on employers that has not been agreed with employees?

945.

Mr Caldwell: It is a permissive power to cope with peculiar circumstances. Such circumstances cannot arise at the moment, but may do so when the new rights, such as adoption leave, are introduced and a combination of different types of leave may be used. Further consideration may be required to ensure that neither the employee nor the employer is disadvantaged.

946.

Mr Carrick: I see. It is a sweeping-up clause.

947.

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

948.

Mr McElduff: What was the outcome of last week's debate on extending flexible working hours? Is that a done deal?

949.

The Chairperson: I said before we began the clause-by-clause scrutiny of the Bill, that because this provision contains no benefit or payment elements, the issue of National Insurance contributions does not arise. It is a new right, and therefore does not require the amendment of previous or parallel primary legislation. That means that if Members feel strongly that the category of people eligible for flexible working hours should be widened, the option is open to them. However, that would create two types of provision in the Bill: payments to employees; and flexible working hours, which may affect a wider category of people. It would create an inconsistency, although Members may be prepared to live with that as more people would benefit from flexible working hours. In a sense that would anticipate the outcome of the consultation on the status of different categories of workers and the way in which those affect people's employment rights.

950.

Mr Carrick: Employers' duties are detailed on page 29 of the Bill. Employers are permitted to give many reasons for refusing an application. Employees have the right of appeal under the new article 112G(2)(d) that is proposed in clause 13. I could be misunderstood, so I must preface my remarks by saying that most employers in Northern Ireland would wish to co-operate with, and accommodate the needs of, their workforces. However, if a small-scale employer did their homework, they would find that the Bill details many reasons that they may give for refusing an application for flexible working hours.

951.

It may be difficult to disprove, but it is up to the employee.

952.

The Chairperson: Article 112H describes situations in which an employee can dispute a decision by going to an industrial tribunal and specifies the grounds for that: namely, that the employer has not followed the correct process. The tribunal's job is not to adjudicate whether the decision meets those criteria under article 112G(1)(b).

953.

The Committee looked previously at the modernisation of the industrial tribunals. That was driven by concern that the caseload had grown dramatically in recent years. However, I suppose that in this case the Department has made an assessment that the likely impact on industrial tribunals will be manageable and the number of cases of disputes regarding decisions on flexible working will not be huge.

954.

Mr Gamble: I am not sure that it would be easy to make a guess about that, but the Department is trying to improve the workings of the tribunals and increase the numbers of full-time tribunal chairmen so that the caseload can be dealt with. However, the number of kinds of dispute that can be taken to tribunal is growing fast. Over 70 kinds of dispute can now be taken to tribunal and those include the discrimination legislation as well as the standard employment costs such as unfair dismissal or deduction from wages.

955.

The tribunal system may have to be extended in the future, but it is hoped that a lot of disputes could be settled between the employer and the employee or with some conciliation through the Labour Relations Agency. As the Committee knows, one of the Minister's proposed amendments concerns applying the arbitration system to disputes on flexible working. The more rights that are created, the greater the likelihood of dispute. Tribunals and other means of dispute resolution must try and keep up with them.

956.

The Chairperson: Is the Committee content to recommend clause 13?

957.

Mr McElduff: I am not, Chairman.

958.

I propose that flexible working be extended to all working parents of disabled children so long as they are dependent. I shall not detail the arrangements; there are special problems post-18. Moreover, the right to request flexible working should be extended to all parents of children under the compulsory school leaving age.

959.

Mr Carrick: Does "working parents" come under the definition of workers as opposed to employees?

960.

The Chairperson: The definition is certainly different to that of "employee". I am not sure of its precise meaning. If the Committee were to make such an amendment, a form of words to define "working parents" should more precisely be determined.

961.

Mr Caldwell: It is my understanding that disabled children, and all parents of disabled children, are covered by this Bill. In other words, a child is a person who has not reached the age of 18; beyond the age of 18 a person, legally, is not a child. Therefore all children would be covered by the Bill.

962.

The Chairperson: This was discussed last week, and I suspect that what Mr McElduff means is that those persons above the age of 18 who are disabled and dependent on their parents are children. Although they are no longer legally classified as children, they are children in an everyday sense. We have had problems in finding a way to express that.

963.

Mr McElduff: The reason I make the proposal - and I accept that it will probably be lost - is to give it some status.

964.

965.

That the Committee recommend to the Assembly that the right to request flexible working be extended to all working parents of disabled children so long as they are dependent.

Barry McElduff

Dr Birnie, Mr Carrick, Dr Adamson, Mr Hilditch.

966.

Question accordingly negatived.

967.

Mr McElduff: I will leave it at that for now.

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

968.

The Chairperson: It seems permissive to allow the Department to make subsequent Regulations when it considers that they are necessary. Is that interpretation correct?

969.

Mr Caldwell: This clause determines the nature of the regulatory powers - in other words, it determines whether they are subject to affirmative, negative or confirmatory resolution.

970.

The Chairperson: Does the clause suggest that they should be subject to negative resolution?

971.

Mr Caldwell: The Regulations would be subject to negative resolution.

972.

The Chairperson: Why are they subject to negative rather than affirmative resolution?

973.

Mr Caldwell: I am not quite sure why. Some clauses in the Bill propose the insertion of new provisions into existing legislation. Thus, Regulations arising from such legislation may be subject to confirmatory, rather than negative, procedure. A judgement must be made on which type of regulation it is reasonable to lay, and any member who wishes to challenge that has the opportunity to do so.

974.

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

975.

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

976.

The Chairperson: The 5 April was mentioned. Is that the correct date? Will the Minister decide on a date at a later stage? This clause allows the operation of the Act on such days as the Department may by order appoint.

977.

Mr Caldwell: All the provisions in the Bill would apply to parents whose children are due to be born on the week beginning the 6 April. The commencement Order or Orders that are required to give effect to the provisions would be made on a specific date before the 6 April.

978.

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

979.

The Chairperson: I shall return to the definitions of worker, employer and employee. If it were decided that wider definitions were appropriate, the Social Security Contributions and Benefits Act 1992 would have to be amended. Would that require a new piece of primary legislation or a new Act?

980.

Mr Gamble: Yes, it would. I do not pretend to know all about social security legislation. However, if the Bill were to introduce a system of paying benefits that was linked to the social security system, the two systems could not operate independently. The definitions would have to be compatible or identical. That is my understanding of the matter.

981.

Mr Caldwell: Let me explain how the mechanics of it might work. If, following the consideration of the outcome of the employment status review, a definite decision were taken to extend employment rights to groups or classes of individuals who currently do not enjoy them, another section would have to be added to employment legislation to change the definition of employee. The term employee might be extended specifically to include additional classes of person who are normally regarded as workers. I am not sure what effect that would have on social security legislation. Obviously, that would have to be considered carefully.

982.

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

983.

The Chairperson: This very short clause states that

"This Act may be cited as the Employment Act (Northern Ireland) 2002."

984.

Some Members said last week that that they would prefer the name of the Bill to be more explanatory. If members come up with what they feel would be a better title for the Bill, this clause will have to be amended. I recall that two options were discussed last week. Two possible titles were discussed; the "Work/Life Balance Act" and the "Parent and Doctors' Rights Act". Do member have any questions or comments?

985.

Mr McElduff: The term "work/life balance" does not accurately reflect the nature of the Bill. The Minister made a statement about Work/Life Balance Week, which is coming up soon, but that is a different issue. Ideally, I prefer the "Work and Parenting Act". I accept that the term "work" has been substituted by the word "employment". The title "Employment and Parenting Act" would give, to use the Chairperson's word, clarity.

986.

The Chairperson: That is another possibility. Do members have any other proposals or does "a rose by any other name smell as sweet"? The title of the Bill is not that important.

987.

Mr Carrick: The title of the Bill should accurately reflect every aspect of it. The suggestion the "Parental Employment Rights Bill" more accurately reflects the four elements of the Bill.

988.

The Chairperson: The four elements are maternity, paternity, adoption and the right to request flexible working. It can be argued that adoption is covered by the term "parental" or "parenting". The two titles that were originally proposed are broadly similar, although one contains the word "rights" and the other does not.

989.

Mr McElduff: I am happy to support the title, "Parental and Employment Rights Bill", and withdraw my suggestion, if that is appropriate.

990.

The Chairperson: The Bill would become the Parental and Employment Rights Act.

991.

Dr Adamson: That title sounds fine and contains all the elements of the Bill.

992.

The Chairperson: Do the departmental officials want to comment on the title of the Bill? It has been discussed in previous evidence sessions, and there is an argument to retain the existing title. Is there any insuperable difficulty in having a slightly longer title, such as "Parental Employment Rights Act", which is a four-word title instead of a two-word title?

993.

Mr Gamble: I would prefer to be silent on that. The Department would naturally defer to the draftsmen of the Office of the Legislative Counsel on such matters. Much of this Bill will be incorporated into other legislation and is simply a vehicle for inserting things into other Orders and Acts. Therefore, the title does not have to be that specific. A draftsman would normally use the same title as the counterpart Bill in GB. The expertise and mysteries surrounding Bill titles rest with the Office of the Legislative Counsel, which will no doubt, have a view on it. However, I do not know who makes the final decision on titles.

994.

The Chairperson: Are there any other comments or questions? Do members agree or disagree with the clause as drafted?

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.