Children and Families Bill

Debate between Viscount Younger of Leckie and Lord Touhig

Wednesday 20th November 2013 Grand Committee

[Viscount Younger of Leckie]

My Lords, I am glad that these amendments give us the opportunity to debate the detail of how shared parental leave will work in practice for families. Shared parental leave will offer families new choice and flexibility about how they manage their childcare arrangements in the first months of a child’s life. It is true that this opportunity will be used by parents only if they feel confident that they will continue to be treated fairly in the workplace when they return.

Current maternity and additional paternity leave provisions provide protections to parents against dismissal; additional support when parents are absent from the workplace during a redundancy process; and the right to return to work into the same job, or in certain cases if that is not reasonably practicable, a similar job that is suitable for them and of equal standing. These protections are important to parents and will directly influence the decisions they make in whether to take maternity or paternity leave. Mothers on maternity leave and fathers taking additional paternity leave currently have protection from detriment while taking leave. Parents taking leave also have the right to be offered a suitable alternative vacancy in a redundancy situation, where there is one available. This alternative must be suitable and appropriate for the individual.

The Government recognise that it is important to provide employees with protection from discrimination and detriment when they are absent from the workplace for parental reasons. I am grateful to the noble Lord, Lord Stevenson, for raising this. I believe that we think alike on this important issue. Furthermore the Government believe that pregnancy discrimination and discrimination against parents taking leave to care for their children is unacceptable in any form. This is why the Government have recently announced new research into the attitudes of employers on pregnancy and maternity leave as well as the prevalence and causes of pregnancy discrimination in the workplace. This research will be jointly funded by the Commission for Equalities and Human Rights, the Government Equalities Office and my department, the Department for Business, Innovation and Skills.

I would like to reassure the Committee that the Government intend to make regulations to provide appropriate protections for employees in the case of shared parental leave. The Government recognise that it is important to provide protections for parents who are absent from the workplace on parental leave and are currently considering the most appropriate way to protect parents taking shared parental leave from being disadvantaged in a redundancy situation. The Government intend to publish draft regulations in the coming months on all key elements of the shared parental leave policy. This will include the details of the protections while on shared parental leave. The Government’s approach will recognise the difficulties that parents may face when taking shared parental leave. Any protections will be proportionate to support parents in an effective way, enabling them to take leave with confidence that they will not be disadvantaged. This will be balanced with the needs of employers to be able to manage their employees effectively.

I turn now to the right to return to the same job. Mothers returning from a period of ordinary maternity leave have the right to return to the same job. This protection is also applied to fathers taking additional paternity leave. Where mothers return to work after a period of additional maternity leave they have the right to return to the same job, or where this is not reasonably practicable, the right to return to a similar job which is suitable and appropriate, the point that the noble Lord, Lord Touhig, made earlier. The Government consulted on how to apply these important protections to parents taking shared parental leave in an appropriate manner. Shared parental leave will create different challenges for employers. An employee will be able to take short, discontinuous absences from the workplace under shared parental leave and this means that employers will have more opportunity to engage an employee in any reorganisation at work while they are in the office.

The Government are currently carefully considering the responses to the consultation on the administration of shared parental leave. This includes how to apply the right to return to the same job to parents taking shared parental leave. I am grateful to the noble Lords, Lord Stevenson and Lord Touhig, for bringing this important matter to the attention of the Committee, but I hope they are reassured that the Government intend to provide protections for parents taking shared parental leave, and the commitment that the details of this will be set out in regulations in the coming months. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.

[Lord Touhig]

My Lords, in what seems an age ago now, I was once the Labour Party parliamentary candidate in Richmond upon Thames and I was invited to address a conference of Labour women. I saw the hackles go up when I said that, as a country, we were wasting a fortune educating women because when they complete their education we put every barrier in their way to stop them getting a job and having a family which, as a man, I take for granted. We still have a long way to go to make sure there is fairness and equality for women in the workplace. I am encouraged by what the Minister says about how we might see the hopes of the amendments tabled by myself and my noble friend Lord Stevenson realised in regulations. All I can say to him when he draws up his regulations is to think of the Welsh “chwarae teg”—fair play. That is all we are asking for. I beg to withdraw the amendment.

Enterprise and Regulatory Reform Bill

Debate between Viscount Younger of Leckie and Lord Touhig

Tuesday 26th February 2013 Lords Chamber

[Viscount Younger of Leckie]

My Lords, government Amendment 32 is simply a matter of drafting. It divides into two clauses Clause 15, which, after the amendment made in Grand Committee, is rather long. This will make the provisions easier for people to read.

Amendment 33 is the government amendment on the good faith test in whistleblowing claims. Amendment 33 amends Part 4A of the Employment Rights Act 1996 to remove the requirement that certain disclosures be made in good faith. As a result, a claim will not fail as a result of an absence of good faith. Instead, the employment tribunal will have the power to reduce the compensation awarded to the claimant where it concludes that a disclosure was not made in good faith. This is an issue that my noble friend Lord Marland indicated we should return to on Report.

I note the argument that by introducing a public interest test the Government have inadvertently created a double hurdle for potential whistleblowers to navigate. To succeed, a claimant would need to show that they reasonably believed that the disclosure was in the public interest and that it was made in good faith. It is not the Government’s intention to make it harder for whistleblowers to speak out. It remains a government commitment that they have the right protection in law. However, I can see that by fixing the legal loophole created by Parkins v Sodexho in the way that the Government propose, there is a risk that some individuals may be concerned that it is too hard to benefit from whistleblowing protection, and therefore they will decide not to blow the whistle. We have listened to the arguments made by noble Lords on this point, but the Government remain unconvinced that the good faith test should be removed in its entirety. There are instances where it is important that the tribunal is able to assess the motives of a disclosure, even where it was in the public interest.

The judiciary tells us that the good faith test is well understood and utilised. As such, the Government have not sought to alter the substance of the test, but have reconsidered how it should affect the outcome of a claim. Currently, the good faith test can affect the success of a claim. This amendment moves the test so it will be relevant only when considering remedy. Instead of a claim failing, the judge will have the discretion to reduce a compensation award by up to 25% in the event that they find the disclosure was not made in good faith. We believe this to be an acceptable compromise, and my conversations with the noble Lord, Lord Stevenson, the noble Lord, Lord Mitchell, who is in his place, and the noble Lord, Lord Young, have assured me that this goes a good way to addressing their concerns.

Amendment 37 sets out the relevant transitional provisions for the whistleblowing provisions of the Bill. The changes apply only where the qualifying disclosure is made after the date on which this section comes into force. Amendment 92 provides for the commencement of most of the whistleblowing clauses of the Bill. I beg to move.

[Lord Touhig]

My Lords, on the good faith test, I certainly welcome Amendment 33, as I think it does mitigate the effects of the introduction of a public interest test as set out in Clause 15. The removal of the good faith test at the initial stages of a whistleblowing claim cuts down the number of hurdles that a whistleblower has to satisfy in order to establish a prima facie case. Having worked closely with the charity Public Concern at Work from the very first time I introduced a whistleblowing Bill when I was a Member of the other place, I know that it, too, welcomes the Government’s response here, as it certainly attempts to strengthen the protection of whistleblowers.

The publication of the Francis report, about which I spoke a moment ago, and the recent revelations about the NHS chief executive, show, in my view, that there is a compelling case for reviewing whistleblowing. We had attempted to persuade the Government in the past that the Public Interest Disclosure Act should be reviewed. I certainly welcome the Minister’s remarks. If I understood him correctly, he said that the Government will work very closely with Sir Anthony Hooper, who is to chair the commission that Public Concern at Work has now set up to look at these matters. I am very pleased that the Government will be co-operating with the commission. It will start taking evidence in March. It is in the interest of all of us that we make sure that as much information as possible goes to this commission so that if a strong case is made for further review, revision or amendment of the Public Interest Disclosure Act, we can do that together in the interest of protecting people who blow the whistle to protect us.

[Lord Young of Norwood Green]

My Lords, I welcome government Amendment 33, which implements an amendment tabled by my noble friend Lord Wills in Committee. This amendment addresses concerns that were raised across all sides of the House that the Government’s decision to introduce a public interest test to the Public Interest Disclosure Act would discourage whistleblowers from coming forward by placing an additional legal test on individuals in order for them to be assured of protection from retributive action by their employer.

It was already the case that in order for whistleblowers to qualify for protection under PIDA it had to be shown that the individual had made such a disclosure in good faith. Throughout the passage of the Bill, we have argued, alongside Public Concern at Work, the organisation that first lobbied for the protection of PIDA, that the combination of a public interest test with the existing good faith test will create legal uncertainty over how these two conditions should interact and potentially dissuade many more individuals from coming forward with concerns. As I and many other noble Lords have repeatedly said, now is not the time to be putting up more barriers to individuals who may blow the whistle but are scared of the consequences, as the Francis report highlighted.

The Government need to be doing all they can to foster a culture of greater openness and transparency within institutions such as the NHS in order to ensure that people feel supported and listened to when raising concerns. We welcome the move by the Government to remove the good faith test from PIDA, leaving just public interest as the primary test for any disclosure made in relation to protections under that Act. It implements what we have been calling for throughout, which is greater clarity and certainty around the Act, and we thank the Government for listening and responding to those concerns. I also endorse the points made by my noble friend Lord Touhig about the forthcoming commission and examining the need to review PIDA. Once again, I thank the noble Viscount and we will support the amendment.