Parental Bereavement (Leave and Pay) Bill

James Cartlidge Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Friday 11th May 2018 Commons Chamber

[Kevin Foster]

My hon. Friend is right that a reasonable employer will behave differently from the type of person at whom the legislation is aimed. To be blunt, the legislation will target the sort of person who adopts the employment practices of Scrooge and Marley—an admittedly small number of employers—but I do not want the Bill to offer a get-out for people who may want to act inappropriately. We must ensure that Parliament’s intention is clear in the legislation that we pass.

[James Cartlidge (South Suffolk) (Con)]

My hon. Friend is making a powerful argument. As for whether employers will act reasonably, this is not necessarily just about the Scrooge-like employers who are literally uncaring. We potentially need to be more prescriptive for certain corporate environments, particularly those with high turnover or significant distance between the management and employees due to the number of people. In a smaller company, where the bond between the employees and an employer who values them is strong, the employer will go out of their way to help anyway.

[Kevin Foster]

My hon. Friend is right. In a small or micro-business with four or five employees, the relationship may feel more like a partnership, instead of a situation involving the boss and then four members of staff. I accept that we may need to be slightly more prescriptive for larger employers, but I do not want the legislation to become so prescriptive that it provides a way for someone who wants to get every last penny out of their employee to avoid the regulations. However, we need to be a bit more prescriptive to deal with some of the examples that have been cited.

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[Kevin Foster]

Obviously my hon. Friend is right to say that a balance needs to be struck. On issues such as how much leave there should be, who this applies to and how it applies, we need to strike a balance against cost, particularly to small businesses. It is worth pointing out, as my hon. Friend the Member for South Suffolk (James Cartlidge) rightly mentioned, that many small businesses are likely to be the most reasonable with their employees in any case.

My hon. Friend the Member for Thirsk and Malton is a great champion of small businesses in this Chamber. Sometimes we rightly talk about not wishing to impose this cost or that cost, but a lot of the time we find that some of the worst examples of poorer employment practice are in one or two larger employers, where a rigid rule is applied fiercely to try to squeeze the last pound out, whereas smaller businesses work more as a team. If we walked into the room and were asked to guess who the owner of a small business was, we would not be able to do so, as the business works as a collective. I can think of hotels in Torbay where the owner of a hotel that is worth millions can be found serving the spuds, as the hotel does silver service—they do literally every job in the hotel, as well as being the owner and manager. However, I accept that there is a balance to be struck.

[James Cartlidge]

rose—

[Kevin Foster]

Given that I referred to my hon. Friend, I had best let him intervene.

[James Cartlidge]

Surely the key point is the difference between rigidity and clarity. The fact that management and staff will know where they stand, as opposed to there being a general reliance on reasonableness, is surely a huge benefit that works to the advantage of both sides.

[Kevin Foster]

We are introducing the Bill to set out in law more clarity on what Parliament expects. We have touched on the fact that we should not create a set of rules that is too rigid, particularly on this 18th birthday issue. We do not want to end up with a bizarre situation in which a doctor putting on the death certificate “five minutes past midnight” means that the Bill will not apply, whereas it would apply had they put “two minutes to midnight”. I understand that we need to be specific, rather than relying on reasonableness, and we that we have to give some guidance. What each of us thinks of as a reasonable expectation in a particular moment will differ, as we are all individuals, with different views and in different circumstances. Some of our constituents rightly take the view that it is not unreasonable to wait a day or two for a reply to their email, whereas others who email at 11 pm will ask why they have not received a reply by 9 o’clock the next morning.

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[Michelle Donelan]

I completely agree. The state and the taxpayer have a responsibility to contribute. If someone is given the amount of time they need to recover, the long-term benefit for businesses and the economy will more than pay back any financial cost.

The Bill is a modern and compassionate measure. It is surprising that most countries do not already make such provision. The Lullaby Trust says that the UK will lead the way with this legislation, and I hope that other countries will follow suit, because this is the right thing to do.

[James Cartlidge]

I have been looking for information about international comparisons, and the reason why there is not much of it is because no one else does this. It is heartening to think that we will be leading the way, and that will be in no small part due to those Members on both sides of the House who have fought so hard for these changes.

[Michelle Donelan]

I completely echo my hon. Friend’s comments. I pay tribute to my hon. Friends the Members for Thirsk and Malton (Kevin Hollinrake) and for Colchester (Will Quince), as well as everybody else in the House who has contributed to the Bill, including all members of the Public Bill Committee. The Bill commands cross-party support, as well as support from the public, who will note today’s debate and see that Parliament sometimes really is in touch with people and their needs.

I echo comments about the fact that when employers are very generous towards their employees, it fosters a sense of loyalty and respect among them. I am sure that employers’ ability to offer this additional support will go some way towards developing that even further. Some of the amendments relate to the amount of leave that can be given. I honestly think that we can never quantify the length of time that it takes to get over a loss—in fact, we never really do get fully over a loss, be that of a child or anybody else who is significant in our lives—so I question whether the time being allowed is enough, although it is a good start. The whole point is that the Bill is supposed to set out the minimum, and we might revisit this and look to increase the time through secondary legislation.

We have discussed when people can take leave. There is a strong argument that an eight-week period is too arbitrary and very strict, because of such things as inquests, anniversaries and the dates when it really hits home. We must also remember that the Bill offers statutory pay, and people who only get that might not be able to afford to take time within those eight weeks. They might have to save up or make provision as a result of debts or the unexpected bills that people have to pay when someone dies. They might also not be ready for those losses. We cannot expect that somehow their financial burdens will suddenly disappear—that can take time.

We have heard an interesting discussion about the age of the child. It is important to remember that no matter how old someone’s child is, they are still that person’s child. Whether someone is 18 or 40, the loss is still huge, and Members have mentioned their personal experiences of that today. There is an argument for increasing the age from 18. We might not be able to do that in this Bill, but perhaps we can look at the position again. I echo the comment from my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) that the burden would probably not increase fivefold, because a lot of people will be retired by the time their child is lost. It is important to remember that not everybody will take up the offer, and some employers would offer their own scheme, so their employees would not be looking at the statutory benefit. We can explore this area more, and I think that further research and investigation needs to determine the cost to the taxpayer if the provision were extended.

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[James Cartlidge (South Suffolk) (Con)]

My hon. Friend is making a very good speech. Some powerful arguments have been made on both sides about the 18 threshold. Is my hon. Friend at least reassured that, as I understand it, parents of those over 18 would be covered by the “reasonableness” provisions?

[Kevin Hollinrake]

indicated assent.

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[Nigel Huddleston]

The hon. Gentleman makes a valid point. We need to factor in other considerations, which is why I said “if” we need to include a cut-off point. One argument in favour of restricting the age in the definition of a child is that the financial burden on the Exchequer may be considerably greater if we extended the definition beyond the age of 18. My hon. Friend the Member for Croydon South asked about siblings, and there is some logic to being careful about how far we extend the provisions. However, the Government will spend over £800 billion this year, and the estimated cost to the Exchequer of this legislation is around £3 million. We must be careful about saying, “That’s a drop in the ocean compared with total Government expenditure,” but it is true in this particular case.

If we do extend the definition to beyond 18, how much more would it cost? Five times more has been mentioned but, again, that means £15 million. Spending £15 million out of some £800 billion of Government expenditure to do something compassionate that is so widely supported is worthy of further consideration, so I ask the Minister to examine that carefully. I understand that the matter is subject to further consultation, so I encourage people to contribute to that debate.

As I said at the beginning, this is one of those topics that shows the House at its best. I will not delay proceedings further by repeating the comments made by others, but I will encourage those who have tabled amendments not to push them to a vote, as I think they have indicated, if that might jeopardise the overall vote.

I completely support the Bill. I have never had to go through, and hope never to have to go through, the anguish and pain of losing a child, as far too many of my colleagues and constituents have. It is right that we pass this law today to show that we stand with them, and with anybody who suffers this huge pain in the future, and to show that the Government are on their side.

[James Cartlidge]

It is a pleasure to follow my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston), who made an excellent speech. I join him and others in congratulating my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on introducing the Bill.

While this has been a cross-party effort—I congratulate everyone who has contributed—I am particularly proud to be part of a cohort of heart-on-sleeve-wearing compassionate Conservatives who have done their constituents and their country proud by delivering change in an area that really matters to people. The cost of the Bill is tiny, as we have heard, but the cost to people who experience bereavement is immeasurable. I hope that I never experience such bereavement. Indeed, I regard myself as incredibly fortunate to have had four healthy children.

I rise to speak to amendments 22 and 8, and briefly to amendments 21, 24 and 25 on the cut-off point. On amendment 22, the hon. Member for North Ayrshire and Arran (Patricia Gibson) and my hon. Friend the Member for Torbay (Kevin Foster) spoke extremely well about the way in which the period of leave will be taken and the need for flexibility.

I have four children, and I was a self-employed company owner. When I had the first two, the company was basically just me, so I did not really take leave. When I had Nos. 3 and 4, I was fortunate that the company had a few more staff, so I was able to take proper leave— Nos. 3 and 4 came at the same time, meaning there was somewhat more need for my support. That period soon ran into the selection process for my constituency and a lot of time pressure, so I was pleased to be in that position, but of course many people are not.

The consultation, entirely reasonably and rationally, says that in considering the structure of the time block for this leave, we will consider the existing arrangements for maternity and paternity leave. Whenever we legislate, it is entirely rational that we look at existing measures so that we do not reinvent the wheel. Page 13 of the consultation says:

“The Bill has mirrored existing provisions for family related leave and pay rights where possible and, in particular, Paternity Leave and Pay. But where the detail is left to be set in regulations, the regulations could be different to those for existing rights.”

This is the key point:

“Paternity Leave and Pay cannot be taken in separate blocks of a week: a father or partner is merely able to choose whether to take just one or both of the weeks available.”

I have been particularly moved by the arguments made today that underline why bereavement leave is very different from paternity leave, and why the circumstances could require extra flexibility.

The hon. Member for North Ayrshire and Arran gave good examples of why we might want flexibility. She talked about court hearings—I think there is a different phrase for inquiries in Scotland—and the fact that more flexibility might be needed in such circumstances. It is important that what we do in this place mirrors what happens in the real world.

In contrast, when I think back to being a new dad, it seems rational that paternity leave is taken in a single block, ideally when the child is born, when help is most needed. With my first child—my daughter—I well remember the intensity of those early days, when I prayed every hour that the baby would at some point sleep through the night. There is an early period of intensity that a parent sincerely hopes will reduce, which is why there is sense in taking the block together. That is a rational position. We have heard powerful examples from hon. Members about the need for flexibility on bereavement leave, however, so I hope that the Minister will respond to them.

[Kevin Hollinrake]

My hon. Friend is making some excellent points. It might not seem that we have best reason for taking this approach; as he rightly points out, the flexibility required in the circumstances of bereavement is entirely different from that needed in the case of paternity leave. However, the difficulty we are dealing with relates to processes in Her Majesty’s Revenue and Customs and its ability to deal with statutory pay. The bureaucracies that support the decisions we make in this House should not necessarily drive our thinking, but they are a consideration to which we must pay due regard.

[James Cartlidge]

I thank my hon. Friend for clarifying the point. Indeed, I did note that from the consultation document, which referred to that fact that the benefit itself limits the flexibility. We all know how difficult it is to change systems, and we can well imagine the difficulty in the social security system, with employer software and so on, in giving out the benefit on the basis of sporadic days. However, there would still be merit in someone having the ability to take unpaid one-off days. I think most people would rather have that freedom, even if it is not possible for it to be covered by the statutory pay they would receive because of the limitations of HMRC’s and other systems.

[Kevin Hollinrake]

My hon. Friend makes a good point. Underpinning all this are the general principles and our expectation that employers would be understanding, sympathetic and flexible in how they deal with this situation. We are setting out the minimum requirements, but we would expect employers to show that compassion and flexibility when dealing with how people take the leave.

[James Cartlidge]

I am grateful for that intervention and do agree with it. If we were to have the single block but there was an exceptional reason to grant an additional day—or even that—at a future point, most employers would be prepared to do so. In most cases, employers will act reasonably as long as a reasonable request is made.

Amendment 8, which was tabled by my hon. Friends the Members for Torbay and for Mid Dorset and North Poole (Michael Tomlinson), is important as it touches on defining the employment status that someone must have to be eligible for these new rights. Proposed new section 80EB (1)(c) of the Employment Rights Act 1996 states:

“an employee who is absent on leave under that section is entitled to return from leave to a job of a kind prescribed by regulations”.

That prescription therefore relates to the type of employment, with the word “employee” being crucial. The issues arising from the Taylor review and the changing nature of employment have already been mentioned, and we have to discuss the extent to which these rights would be available to employees in those newly growing, ambiguous areas.

My hon. Friend the Member for Chippenham (Michelle Donelan) referred to the self-employed, but of course we are not talking about a homogenous group. Before the general election, when I served on the Work and Pensions Committee, we held an inquiry on the gig economy—this growing army of the self-employed. We heard evidence about cases in which people are, to all intents and purposes, employees. On this amendment, my question for the Minister is: in defining jobs and defining people as an “employee”, are we able to award these benefits—these rights—to those defined now as “workers”? I refer to those people in between employment and self-employment. Are we able to do that, or do we need to introduce separate regulations to do so?

That is an important point, so it is handy that I have a copy of the Taylor review. The Bill amends the primary piece of legislation to which it relates—the 1996 Act—and we are dealing with the important distinction between an employee and a worker. I remind the House that the 1996 Act states that an

“‘employee’ means an individual who has entered into or works under…a contract of employment.”

I will not go into the detailed definition in the report, but a worker is someone who has some form of contract.

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[Antoinette Sandbach]

We heard similar evidence on the Business, Energy and Industrial Strategy Committee, and it is a real concern.

[James Cartlidge]

It is a real concern. This whole subject of the changing nature of work is fundamental, and it matters because it gives rise to this question: if someone has been “working” for one of these companies—possibly as a gig economy worker, but certainly in that grey area between employment and self-employment—and they suffer the terrible tragedy of bereavement, are we really saying, particularly if they have been working primarily for one company for many months, that they should not enjoy this right? That is a key question; it is what the whole Taylor review boils down to.

When we talk about the nature of someone’s work, most of us have an instinctive understanding of what employment looks like. The review puts it well:

“Ultimately, if it looks and feels like employment, it should have the status and protection of employment.”

In other words, those people should have these sorts of rights. That is incredibly important.

I shall not stray from the subject, Madam Deputy Speaker, but there are a whole load of issues, including auto-enrolment, relating to how we bring greater security to those who are caught up in a flexible and dynamic workforce in which the need for flexibility can sometimes mean that people are exploited. To all intents and purposes, they have given their employment to one firm, yet they have not been given the same security and rights that they would expect for having reduced their own freedoms. That is the exchange that underpins an employment contract.

I hope that my hon. Friend the Member for Thirsk and Malton will be able to give further information on the extent to which the Bill will benefit those in the specific category of worker. They are not the normal self-employed—if someone starts a business, they would not expect to have the same rights—but the 1.3 million people whom we know of in the gig economy. If they have offered their work on a pseudo-employed basis for many months and then suffer bereavement, my view is that there is a strong case for suggesting that they should have the same rights as the employed.

Finally, on the amendments relating to the cut-off point, which is a difficult issue, the moral argument that was set out very well by the hon. Member for North Ayrshire and Arran is very hard to argue with. Who knows precisely what the cost would be of her amendments and those tabled by my hon. Friend the Member for Torbay on the cut-off point—my hon. Friend the Member for Mid Worcestershire made an estimate, and I am sure it would not be many, many millions—but I want to understand the extent to which those who would suffer from the cut-off point because their child was over 18 would still be protected under the provisions on reasonableness. After I intervened on my hon. Friend the Member for Croydon South (Chris Philp), he confirmed that his understanding was that they would be protected, as did my hon. Friend the Member for Thirsk and Malton, but I would be grateful if the Minister would confirm that someone would still be protected, even if their child was above the cut-off point, because that is very important.

In conclusion, this is a powerful Bill, and our proceedings are a classic example of Parliament coming together to deliver changes that appear small in terms of the legislation and the cost, but that will be enormously beneficial to those struck by a pain that is, for me, beyond understanding. I have nothing but the greatest sympathy for those who suffer bereavement. We should all be proud of this work. I hope that the Bill proceeds and encourage everyone in the House to support it.

[Edward Argar]

It is a pleasure to speak at this stage of the Bill’s progress. I very much enjoyed my time on the Bill Committee, and pay tribute to all my colleagues who served on that Committee. Indeed, it was also a pleasure and a privilege to speak on Second Reading of this Bill.

As many hon. and right hon. Members have said during the passage of this Bill, we are, to a degree, righting a wrong. Although many businesses do the right thing, as we would wish them to do, in looking after and supporting bereaved parents in the dreadful circumstances of having lost a child, there are some, as we have also heard, who have not done that. What this Bill does is not only to send a very clear message to all businesses but to provide a basic level of protection.

I pay tribute to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake). I think that this is his second private Member’s Bill and, like his previous one, it stands a very good chance of success. He is always someone to have in one’s corner when taking a cause through the private Member’s Bill process. I also pay tribute to my hon. Friends the Members for Eddisbury (Antoinette Sandbach), for Colchester (Will Quince), and, although she is not in her place today, my hon. Friend the Member for Banbury (Victoria Prentis) and, of course, the hon. Member for North Ayrshire and Arran (Patricia Gibson), all of whom have spoken extremely movingly, at different points, about their experiences and why this piece of legislation is so hugely important.

Let me turn to the specific amendments before us today. I can understand why each of them is hugely important, but we must also be careful that we do not try to make the perfect the enemy of the good. The key must be to get this legislation through the House. Amendments 22 and 23, tabled by the hon. Member for North Ayrshire and Arran, are essentially about flexibility, which was also highlighted in the amendments tabled by my hon. Friend the Member for Torbay (Kevin Foster). She makes an extremely valid point. If I recall, there are organisations, such as Together for Short Lives and Cruse Bereavement Care, which have all made the same point about the need for flexibility. Individuals and families cope and grieve in different ways, at different paces and at different times. Some will want to go straight back to work, while others will want time to grieve quietly. Equally, as we have touched on in previous comments, if there is an inquest or if the death has been sudden and unexpected that may well also increase the need for flexibility, because no one will know when they may need that time off.

Although I entirely take on board what the hon. Member for North Ayrshire and Arran said—I will be interested to hear whether the Minister will allude to this—it may be that the most effective way of addressing the points on flexibility is to feed them into the consultation, which is due later this year, and to use that as a mechanism to address them, rather than necessarily putting them in the Bill. I am entirely sympathetic to the points that she makes. I would be grateful if the Minister could say what he thinks is the best method by which to achieve that outcome.

We then turn to amendments 24 and 25, which were mentioned by my hon. Friend the Member for South Suffolk (James Cartlidge), about where the cut-off point should be. He was absolutely right in what he said. The hon. Lady made an extremely powerful moral case for her amendments. My hon. Friends the Members for Thirsk and Malton and for Croydon South (Chris Philp) were clear that the reasonableness test would address the issue, but, again, I would welcome clarity from the Minister on his interpretation of that.

Finally, let me address amendments 1, 2, 12, 14 and others on the definition of what a parent is in the context of this Bill. I argue that that is one of the hardest parts of getting this Bill right—how do we define the scope of what is a parent. There will be biological parents, and there will be the partners of someone who is not the biological parent, but still feels the bereavement as acutely. I believe that, in Committee, my hon. Friend the Member for Thirsk and Malton mentioned the case of Mandy Ruston who talked on Facebook about the fact that, while she was able to get support from her employer, her partner, a non-biological parent, was told by his employers to return to work.

It is extremely difficult, particularly in the modern age, for us to define who is a parent. Perhaps, rather than looking at a legalistic or biological definition, we should look at it in terms of caring responsibilities. The challenge is to try to find a legal definition for the purposes of legislation. This Bill goes a very long way towards doing exactly that. It is not perfect, but I have yet to see, in my short time in this place, any legislation that I believe is entirely perfect as it passes through this House, or indeed as it emerges at the other end. There are always things that can be tweaked to reflect the changing nature of society or changing circumstances as the world moves on.

Throughout the passage of this Bill, we have heard a number of extremely moving, thoughtful speeches and contributions. As Members on both sides of the House have said, all those contributions have been made in a spirit designed to allow the Bill to progress and to work together to come up with the best legislation we can. With that in mind, the key for all of us must be to get the Bill on to the statute book. Where there are issues that still need to be ironed out, we should not shy away from that and we should continue to look at them, but the key must be not to let that slow down or impede the passage of the Bill. We should get the Bill on to the statute book and then we can, as necessary, refine and tweak by regulation or through the consultation.