Statutory Shared Parental Pay (General) Regulations 2014

Debate between Baroness Brinton and Baroness Turner of Camden

Monday 10th November 2014 Grand Committee

[Baroness Turner of Camden (Lab)]

My Lords, in general, I support the regulations, because I understand that the thinking behind them is to enable both parents to come together to care for the child; obviously, one supports that.

However, I should like to raise one or two issues with the Government, just for clarification. Incidentally, I thank the Minister for the detailed paper that has been issued in support of the regulations. The regulations stipulate that for an eligible mother to meet the requirements for a shared allowance and so on, she must curtail her maternity or adoption leave in order that the curtailment can be used to support the new shared parental provisions.

This could give rise to some problems here and there, because not every couple is married and not every couple is living together. The mother might have difficulty contacting the father to enable them to come to an agreement in relation to the shared provision provided for in these regulations. One has to remember that relationships are not all exactly as we would wish them to be. People do not always live together—they may have a child together but may not live together, and the woman may therefore have the obligation placed on her of trying to sort things out and make sure that the shared rights are available. If she has to curtail her own share, that may be a bit more difficult. Have the Government thought about this? We are of course working in this situation where not everybody is in married partnerships or even living together. Nevertheless, we want to ensure that both parents participate in looking after the child, when the child needs to be looked after, and that the rights under the regulations are properly shared between the two parents.

[Baroness Brinton (LD)]

My Lords, the legislation in the Children and Families Bill went through extremely smoothly. In fact, I think it was one of the smoothest things I have seen in the four and a half years since I came into the House because all sides welcomed the introduction of parental leave. Just looking at noble Lords around the Grand Committee, I do not remember any amendments at all during the passage of the Bill, which was very encouraging. I am principally glad—I am delighted that my noble friend outlined this at the start—that the interpretation of “family” in Regulation 3 gives a clear picture that it comes in all shapes and sizes, including same-sex partnerships. The issue about the family unit is a difficult one but I hope this also covers the point made by the noble Baroness, Lady Turner, that a family is not always at the same address. Recognition of that about the family unit is most important and is a major step forward for government. Let us hope that employers are as encouraging. I am delighted to see that adopters have the same entitlement to leave. It is even more essential when a child may have had a distressing start to their life to be able to have that relationship with both of their new parents.

I have two questions, which are not so much about the regulations but about their application. The first relates to Regulation 17, which modifies the eight-week regulation where a child is born early. I have a nagging worry that employers might use these regulations to be less than compassionate to a partner where the mother and the baby might still be in hospital. If the baby is in a neonatal intensive care unit, could the employer say, “Well no, the mother is using the leave and therefore you can’t”? It is quite possible these days for a baby to be in a neonatal intensive care unit for more than the eight weeks covered by the early period after birth. The second question refers to the following regulation, on change of circumstances. Can the Minister provide some reassurance that there will be monitoring of employers saying that it is not convenient to change arrangements at fairly short notice? If this becomes a default reason for refusing change, it will be defeating the object of the regulations.

Part 5, on taking shared parental leave, includes a regulation looking at protection from detriment. There is some concern over the right to return after shared leave in Regulation 41 that the job the partner can go back to is broadly in sympathy with the job that the mother can return to. I think it would be wrong for a partner to have a less robust facility to go back to their prior job. It would be reassuring to hear that that is the case.

Will there be codes of practice for employers on how they can liaise with each other when dealing with this arrangement between a mother and a partner trying to break down the leave between themselves, particularly in relation to statutory maternal/paternal pay?

On a positive note, I know of at least one young couple who have delayed starting their family until this comes into place because the partner works for a very open-minded organisation and he would like to test it on extended parental leave at a fairly early date.

Finally, we need some really good evidence of how this is being used to encourage employers and prospective parents that this is something that will really change the nature of a child’s first year’s relationship with both their parents.

Growth and Infrastructure Bill

Debate between Baroness Brinton and Baroness Turner of Camden

Monday 22nd April 2013 Lords Chamber

[Baroness Turner of Camden]

My Lords, there are already in existence what I suppose you could call partnership schemes, where people can of course have shares and a partnership with a company without the necessity for the abandonment of employment rights. As this legislation stands at the moment, one cannot help feeling that this is a way in which the Government want to get rid of employment rights without appearing to do so by introducing a scheme under which the employee can be persuaded to voluntarily give up an employment right where they normally would not consider doing so because that would not be required.

I do not think that we can judge this on the basis that “We ought to have a scheme where people do participate”. Schemes like that are available. What is difficult about this is that the basis seems to be the abandonment of employment rights before the employee can get involved in any sort of share or partnership scheme. I think that that is what we object to very strongly; I, at least, have done so from the very beginning. It has always seemed to me that the Government themselves are not keen on employment rights. This is a way of getting rid of those rights without appearing to do so, simply by offering an employee something that really does not compensate for the loss of the very important employment rights that we have been discussing today. It is that sort of basis which is why I oppose this clause and why I fully support what the noble Lord, Lord Pannick, has said with great clarity. This is the situation that I take now, and I hope that the Government will be disposed to accept what we have said on this side of the House—indeed, on every side of the House—which is: do not proceed with this scheme. Not only will it not work, but it is not right and it does no good at all to employment and employment rights.

[Baroness Brinton]

My Lords, I want to start by thanking the Government for the concession on jobseeker’s allowance candidates and the fact that they will be not penalised, but I have to also agree with other colleagues on both sides of the House who have admitted that this is really the rectification of a mistake rather than a major concession. However, it is essential. It is critical because before it, any of the guidance to the DWP and Jobcentre Plus offices would have been unusable and unworkable for this system, and would have put candidates for such jobs at complete peril.

I am also pleased—I will not go into detail about this, but want to refer to it—that throughout the passage of this Bill we have consistently talked about the necessity of independent legal advice. That is not just for those who are currently unemployed and are being sent to interviews by Jobcentre Plus; it actually applies to anyone. I think of a young 23 year-old that I know who has just joined a high-tech company in Cambridge where I think hardly any of the employees do not have at least one degree and most have at least two. However, if you asked that 23 year-old about the way shares work, he would not understand them at all and would clearly need advice as well. Helpfully, the firm that he has joined has made sure that any new employee who gets access to the share scheme gets that advice, so there are some good examples around.

However, if this scheme does not offer that advice where there is an element of two tiers of employment, that means that such advice must be made available. Frankly, I agree with the noble Lord, Lord Pannick, and others who say that it is on a par with the formal legal advice required for compromise agreements.

Following the debate in the Commons last week, I shall focus on the Minister’s referral yet again to this being suitable for small high-tech companies, particularly in university areas and high-tech areas. Confession time: in the 1980s I was a venture capitalist, spinning ideas mainly out of universities, although not only Cambridge University, and that is one of the reasons why I have quite a lot of experience and knowledge of what is happening in those companies now.

It is quite clear that good, small high-tech companies already use employment share schemes, or share schemes for all their employees who come in right at the start. The reason why they do this is that they know it is going to be a very hard road to make the product successful, particularly if it has not even been developed yet. They know that as time goes on further rounds of money will be coming into the company, and that they will be diluted not just once or twice but to a very minimal amount. Therefore, £2,000-worth of shares on day one, which for argument’s sake might represent 10% of a brand new company, might actually end up being a tiny percentage once you have had three, four, or five rounds of venture capital and hedge fund money going in. As a result, an employee will have to wait a very long time before they see any benefit.

Again, having to pay for those shares up front is not just an issue for those who come from unemployment; it is an issue for those coming in at a very low starting salary who, in addition, have to give up their employment rights and are being told, quite frankly—in Cambridge, which I know quite well, everyone freely admits this—that it is extremely unlikely that you will see any return on any investment in the first 10 years of a high-tech company. If you do, then it is a real star and is to be applauded. However, the vast majority, 95% of firms, do not do that, and 90-plus% of the firms do not actually provide a return to shareholders because they are often sold at the point at which the shares are virtually worthless. So please can we stop deluding ourselves that small high-tech companies are perfectly suited to this? The good ones do it already, but why on earth would they then want to give up employment rights in return for an extra part of this very risky journey? It just does not add up.

I was slightly concerned when the Minister referred to self-employment for these sorts of firms. I understood from the chart that we have received with the Minister’s letter, for which I thank him, that they are outside employment law, and I think that the House would accept that. The references being made implied that self-employment might be an option for those working for the firm, and I think that would definitely be against HMRC guidance; if somebody is working principally for a firm then they should not be self-employed. I am concerned that we are perhaps beginning to develop a dialogue of a third tier of employment, and I hope that the Minister will be able to make it absolutely clear that self-employment is only for those who actually have a range of clients and customers and do not work for just one firm.

The noble Lord, Lord Deben, talked about how this might be a point for experimentation, but I think the experiment is already happening and has been happening through the examples that I have been giving, without the need to give up employment rights. In summary, I believe that this legislation is unloved, unnecessary, unwanted and, frankly, likely to be unused. I am concerned that this is not the best use of Parliament’s time. I am in the same position as the noble Lord, Lord Deben; I do not like voting against my own Government, but I just feel that there are too many flaws in this. It is not a hopeful scheme for the future; they are there working at the moment. Please, let us not compromise employment rights in return for shares that are very unlikely, for the vast majority of employees, to be worth anything at all.

Enterprise and Regulatory Reform Bill

Debate between Baroness Brinton and Baroness Turner of Camden

Monday 4th March 2013 Lords Chamber

[Baroness Turner of Camden]

My Lords, in Committee I put down an amendment to this part of the Bill. I was overwhelmed by and supportive of the noble Baroness, Lady Campbell, who made a most eloquent plea in support of the case then. I hoped that because of the support that she had, the Government would have reconsidered their position and accepted what everybody was pressing for, and what a number of us will, I am sure, press for this afternoon.

The Bill seeks to do away with Section 3 of the Equality Act, which sets out the guidance, principles and values that define the commission. It attracted all-party support in Parliament when the legislation was first debated. They are very important in terms of both perception and symbolism, as a number of speakers have already pointed out. With such pressure on the Government to change their position on this Bill, I hope that they will tell us this afternoon that they have decided to do so. It is not only the law that is important but the culture in which we all operate, and the commission plays a very large role in changing that culture.

We all want to live in an equal and dignified society, which is what Section 3 envisages. I hope that the Government have changed their mind since Committee and will now agree to support what the noble Baroness and her supporters so eloquently expressed this afternoon.

[Baroness Brinton]

My Lords, I, too, support the sentiments and comments made by all noble Lords who have spoken. I will add one further point. The distinction between compliance and a general duty implies that there is no need for anything until the point of compliance. However, many issues that relate to people with protected characteristics are often cultural, and may not get to a point where compliance is necessary straightaway. It would be much better for that culture—for example, the treatment of adults with learning disabilities, perhaps in one or two homes before it starts to gather momentum—if there were a general duty on the sector, and if the commission could go in, offer support and start to change the culture before a crisis develops that requires compliance. I echo the sentiments of others who have spoken before, and very much hope that the Government will reconsider the deletion of Section 3.

Enterprise and Regulatory Reform Bill

Debate between Baroness Brinton and Baroness Turner of Camden

Tuesday 26th February 2013 Lords Chamber

[Baroness Turner of Camden]

My Lords, I listened with interest to the Minister; I was very much opposed to Clause 11 at Second Reading and I am still not at all happy about it. I have always believed that the involvement in procedures of lay members is a matter of much interest to us all. The workers who appear before tribunals have always been concerned that they should include lay members with some knowledge of working practices, particularly at appeal stage. The value of the involvement of lay members with knowledge of workplace procedures and conditions is widely respected. The individual claimant knows that the appeals tribunal contains people with a knowledge of employment relations and this gives the claimant confidence in the proceedings.

I do not know why the Government are proceeding along these lines, except that there is apparently an estimated saving. However, the saving is only between £120,000 and £130,000 a year, which is not all that much if it results in a loss of confidence in the proceedings. The value of lay members has been specifically recognised by the Court of Appeal. I have been approached by lay members who are very concerned that their services may be dispensed with. They referred me to the case of Balfour Beatty and Wilcox, where the contribution made by lay people has been directly acknowledged and congratulated.

As it stands, Clause 11 should not be part of the Bill; there is no real good reason to depart from present practice. I accept that the Minister has already offered some modification, but I still believe it is necessary to involve lay people. They make a contribution to the procedures and are widely respected, by employees appearing before them and by employer organisations. I can see no reason for dispensing with them in the present procedures. I do not think that the savings involved are worth what may result in a total abandonment of the existing procedures which have served us well and which have the respect of the people who appear before them. We need more concessions from the Minister about what Clause 11 actually means and how it will operate.

[Baroness Brinton]

My Lords, I support many of the points made by the noble Baroness, Lady Turner. Indeed, I made some of them in Committee. One of my particular concerns was the issue of diversity and ensuring that lay members were able to inform a judge of their experience of employment practice and diversity than may be apparent to a judge sitting on his or her own.

I welcome the government amendments. In particular, it is extremely helpful to have spelt out the equality of employer and employee representatives, whether it is two or four. I am grateful for that.

I have a question based partly on the noble Viscount’s comments and on the concern of the noble Baroness, Lady Turner, about what the government guidelines will be for when a judge may not sit on their own. I reiterate my support for the government amendments—they go some way—but we still need some clarification.

Enterprise and Regulatory Reform Bill

Debate between Baroness Brinton and Baroness Turner of Camden

Wednesday 5th December 2012 Grand Committee

[Baroness Turner of Camden]

My Lords, we have got on to talking about Clause 11, which I opposed at Second Reading on the basis that it was quite unnecessary. I did not really understand why the Government decided to proceed along these lines because the tripartite system that we have works extremely well. The lay people who serve in it are highly respected and in no way put off by the somewhat legalistic environment. They are quite well able to look after the whole situation as concerns workplace arrangements—they know about workplaces, which is why they are appointed to serve on the tribunal.

I still do not really understand why the Government believe that a judge sitting alone on unfair dismissal cases is likely to be more competent. Do they expect him to find more ways to go against the employee? Have they decided that they want a judge sitting alone because the decisions are more likely to be the kind that the Government would like? We know that they are not very keen on tribunal hearings anyway. I want to know why the Government think that this is a good idea.

In the document that the Government have already issued, they have indicated that the points at issue would be legal points, which is why it would be a good idea to have a judge sitting on his own. However, I remind the Government that they have already introduced LASPO, which means that there is no access to legal aid in employment cases. In fact, the individual who is not represented by someone he can afford to appoint to look after him, if he does not have a union to support him, will be entirely on his own and will have no access to any form of legal aid because LASPO has decided against it, as far as employment cases are concerned. An unfortunate individual such as this would have only himself to rely on before a judge sitting on his own. That is not a good idea. It would be far better to have lay people still operating, and I very much hope that the Government will reconsider their position here because it is not fair. It means that individuals will very often, if they are taking up their case themself, be left without anyone to represent them. That is not a good idea if they are going before a judge sitting on his own who is guided simply by legal principles, not by what happens in a normal workplace.

[Baroness Brinton]

I have slightly different concerns about Clause 11, but they stem from the same starting point. They are about why the Bill proposes to give the judge much more power to decide on whether a panel should sit with him or her to hear an appeal.

Given that the practice is already there, evidence shows that lay people are brought in to assist a judge, usually on a controversial decision that requires expertise from both the employer and the workforce background. As has been mentioned by other noble Lords, lay members of these appeal panels frequently are respected by both parties. That balance has been an absolute strength of the appeal panel. I am struggling to see why it should become automatic that the judge would sit on his or her own.

I rather pointedly said “his or her own” because I also want to raise the issue of the diversity of an appeal panel when a judge is sitting on his own—it is usually “his” own—and diversity has, ironically, been provided by the lay members. Can the Minister give us some indication of the action the Secretary of State would require to ensure that there was diversity—essential in employment hearings—in appeal proceedings if this process becomes commonplace?

I come back to my initial point: I do not understand why the balance has been tipped from the current situation, in which when a difficult decision has to be made, judges are absolutely clear that they should bring in people, to a proposal in the Bill that presumes that the judges are likely to want to work on their own initially.