Clause 38 - Failure to give statement of employment particulars, etc.
Employment Bill
6:30 pm
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I will not say that this amendment is a probing one, because a substantive point is involved, but perhaps it has been dealt with in a way that I have not understood. The matter is complicated. The purpose of clause 38(4) is to distinguish and deal with two classes of defaulter: the employer who delivers a statement that turns out not to be the requisite statement, being defective in some way; and the employer who delivers no statement at all. Common sense tells us that there is a difference between the offence of thumbing one's nose at the rules and saying, ''I am not going to do what is required'' and the probably lesser one of having a stab at the task but making a hash of it and delivering a defective statement.
Subsection (4)(a)(ii) refers to an employer who
''has not given the employee a statement purporting to be a statement under that provision''.
The important point is that the statement may or may not discharge the employer's duties under the provision, but it at least purports to do so. The sub-paragraph continues the definition,
''or a document capable under section 7A . . . of performing the function of such a statement''—
a substitute document.
It seems to me that to be consistent, and for symmetry, the latter passage should refer to ''a document purporting to be a document capable under section 7A . . . of performing the function of such a statement''. Anything less treats the substitute document, or the document delivered as capable of being used as a substitute document, differently from a statement that is delivered as a statement under the provision, but which is not one.
It is difficult to make the argument concise, but there is a clear lack of symmetry between the reference to a statement purporting to be a statement and the lack of
a matching reference to a document purporting to be a document. If I have missed something about this, perhaps the Minister will clarify the matter.