Employment Rights Bill (Eighth sitting)

Alex McIntyre Excerpts

Committee stage
Thursday 5th December 2024 Public Bill Committees

[Alex McIntyre (Gloucester) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Christopher. I want to refer to a couple of the comments made by my hon. Friend the Member for Birmingham Northfield. I appreciate that this is a probing amendment and that, as the MP for Gloucester, I perhaps have a vested interest, given that a number of my constituents work over the constituency border in Cheltenham.

Flexible working will not be available in every role, for some of the reasons listed in the Bill, but for many roles there would be the ability to start half an hour later and finish half an hour earlier, perhaps, or to work different hours over the course of a week. Those are results of flexible working requests. I think that, sometimes, there is a haste from the Conservative party to equate flexible working with working from home—and to put little notes on people’s desks saying that they are not working hard enough. It is really important that we look at flexible working as a whole.

In my experience as an employment solicitor, the Bill is welcome, because the “reasonable” test is important in making sure that we are encouraging employers to think properly about flexible working requests. This measure is also very business friendly, because there is a long list of exemptions that will allow an employer to say, “Because of x, y and z, flexible working is not appropriate.” There is no requirement to accept a request; there is only a requirement to think about it, and to think about those exemptions reasonably. In the context of what we are trying to do, and that balancing act between rights for employees and rights for businesses, I think this lands in about the right place.

The shadow Minister is right that this change will not apply evenly in every sector; it cannot in every business, because of the reasons listed in the exemptions. Each business will have different requirements regarding customer demands, performance and quality. It would be quite difficult for a dentist to work from home, I suggest, but it might be quite easy for them to come in at half-past 9 two days a week. Again, that is a flexible working request. The reasonableness test deals with the purpose of the shadow Minister’s amendment, which is to look at how different sectors might approach the change rather than having a one-size-fits-all approach.

[Jon Pearce (High Peak) (Lab)]

It is a pleasure to serve under your chairship, Sir Christopher. I refer Members to my declaration in the Register of Members’ Financial Interests, and my membership of GMB.

I will apologise now if I have an out-of-date amendment paper; the one that I have is dated Tuesday 3 December. Very early on in our discussions, we had the strange definition of a small or medium-sized businesses as one employing 500 people or more. I just want to check whether the proposed amendment is indeed accurate, because it refers to

“the test of reasonableness in subsection (2)(b)(ii)”.

I do not think that any such subsection exists—I think it should be (3)(b)(ii)—but I appreciate that that might be my misunderstanding.

--- Later in debate ---

As these are probing amendments, we will not push them to a vote, but the Opposition’s message is to ensure that everything is thought through, so that the Bill does not create some huge problems down the line. I do not believe that this is a ridiculous amendment, but I will bring up a ridiculous example. Imagine one of the authors who try to emulate the writings of Ian Fleming having to write in future about M asking where Bond is, and Moneypenny coming into the room and saying, “I’m sorry M—he’s flexibly working today. The nuclear warhead has reached its destination.” I appreciate that is an absurd example, but I make it to properly push—

[Alex McIntyre]

Will the shadow Minister give way on that point?

[Greg Smith]

I will finish the line, and then I will. I make that point just to highlight that there are sometimes circumstances in which the flexibilities that the Minister spoke of may not fully apply. I am sure a witticism is coming.

[Alex McIntyre]

Sadly, I am not very funny. Would M’s HR adviser not say, “That might have a detrimental impact on your performance, Mr Bond”? That flexible working request could therefore be reasonably denied.

[Justin Madders]

I am sure that was in “GoldenEye”!

--- Later in debate ---

[Greg Smith]

I will take on the chin the hon. Gentleman’s point about the 2011 dataset, which was published under the coalition Government, led by my noble friend Lord Cameron. The current Government is seeking to make this legislation, however, so the onus is on them—right here, right now—to provide the datasets, evidence, proper analysis and impact assessments for the legislation that they are putting before the House of Commons and, later, the House of Lords in this Session of this Parliament. I hope the hon. Gentleman accepts the good will with which that comment is made—it is not a political attack. It is the duty of any Government at any time, as they seek to legislate on any matter, to provide the impact assessments, the real data and the real-world evidence of why it is necessary to put that legislation in place.

As I said earlier, it is simply a case of asking the Government to do their homework properly, and to provide, not just to Parliament but to businesses and employees up and down the land, the basis for which they are seeking to change our statute book.

[Alex McIntyre]

I will return briefly to a couple of the shadow Minister’s comments. I take some quantum of solace in the fact that he now seems to be accepting the principle of consultation. Over the past couple of weeks, we have often heard that he would prefer there to be certainty for business in some of the provisions, and now there is some certainty.

[Greg Smith]

I understand the hon. Gentleman’s point, but my argument throughout our debates on the amendments has been that it is normal practice to consult first, legislate second, but in many parts of the Bill the practice is to legislate first, consult second. That, I gently suggest to him, is probably the wrong way round.

[Alex McIntyre]

The “cake and eat it” argument is the point I was trying to make. I advised on flexible working requests regularly when in private practice, where individuals and, in particular, employers were asking what their rights were in respect of a request.

The hon. Gentleman raised two points, the first of which was about costs. Again, I point to the exemptions. The burden of additional costs is one of the exemptions by which an employer can say that it is not reasonable to accept a flexible working request. The balance between having rights for employees and making sure that they are not too much of a burden on business is important. The burden of additional costs is already explicitly covered in the legislation.

Secondly, in relation to tribunals, one of the issues with the current system is the lack of explanation provided. Employees often believe the worst, even if that is not always the case. They might make their request, with valid reasons, and if their employer tells them a flat no, with no further explanation, they often believe the worst and bring a tribunal claim.

Providing that explanation at the beginning requires the employer to think about the request. Not every employer is an excellent, flexible employer; some employers think that by offering flexible working, they will somehow lose productivity, whereas lots of studies have shown the opposite. Through that provision, employers will think about the request, engage with the process and the exemptions, think about what that means for their business, and provide a reasoned explanation.

That will not take as long as we might think, because there are only eight exemptions and people know their business very well. When they give that written explanation, it can be relatively short. It does not have to be “War and Peace”—I should have mentioned another James Bond novel—because it is just to give some background. We will then have an explanation that can be used in a tribunal. That will really assist tribunals in dealing with these cases, because there will be a written explanation of why the decision has been taken.

There are loads of cases in which people bring claims of discrimination because their flexible working requests have been rejected. Those can take up lots of time, when there has been just a misunderstanding between the employer and the employee. By introducing the requirement to provide an explanation, and for the employer to think through the reasonableness of it, there might hopefully be fewer claims in the employment tribunal.

[Dame Nia Griffith]

Let me make a couple of quick points to sum up. The Opposition are trying to say that most businesses already do this, but this is not about the principle of introducing flexible working; it is about making the process straightforward, clear and consistent across businesses. As my hon. Friend the Member for Gloucester said, by ensuring that clarity, it may well reduce the number of cases that get taken to tribunal.

If most businesses are already doing this, why do we want to legislate? Well, we do not want those businesses to be penalised for doing the right thing. We want everybody to be offered the opportunity of flexible working within the reasonableness of their working situation, and with the opportunity for employers to refuse on the eight specified grounds. That will spread best practice not only in it being offered in all places of employment, but in the way that any request for flexible working is dealt with. That is an explanation of the context.

As we have clearly said, our impact assessment has provided an initial analysis of the impacts that can follow, but we will update and define them as we further develop the policy. In fact, part of the clause is specifically about the Secretary of State having the power to provide further detail. We are confident that as most businesses already participate in this process, make the appropriate responses to their employees and understand the system, it will be not a huge new burden to them in any way. I remind Committee members yet again that dealing appropriately with requests for flexible working can considerably help recruitment and retention for businesses. On that note, we reject the amendments tabled by the Opposition.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Statutory sick pay: removal of waiting period

Question proposed, That the clause stand part of the Bill.