Clause 2 - Statutory paternity pay
Employment Bill
3:00 pm
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
The amendments deal with the complex architecture of the Bill. I hope that the Committee will bear with me if it does not seem crystal clear at first. Amendment No. 130 deals with the perceived problem in relation to new section 80A. Amendment No. 131 deals with the same problem in relation to new section 80B. New section 80A provides that regulations will determine various factors, such as the number of weeks of continuous employment that entitle an employee to statutory leave. New section 171ZA cites in subsection (2)(b) a requirement of 26 weeks. The regulation made under new section 80A may not say 26 weeks. My understanding was that the statutory paternity pay regime was intended to mesh exactly with the statutory paternity leave regime, so that someone entitled to statutory leave would be entitled to statutory pay, except where he was below the earnings threshold, should the hon. Gentleman's amendment not be successful. In most circumstances, the two regimes would operate in a similar way.
However, new section 80A leaves regulations to determine the number of weeks, whereas new section 171ZA specifies the number, so we could have a difference between the two regimes. The Minister will no doubt say that he intends to make a regulation under new section 80A that specifies 26 weeks. That is fine, but the fact that secondary legislation could change the reference in one section but not the reference in the corresponding section about pay shows that the drafting is not perfect.
Instead of referring to the 26-week criterion for eligibility for pay, the Bill should refer to the period specified in regulations under new sections 80A and 80B, so that there is always perfect symmetry between the two, whatever the regulations made under those sections might say from time to time.
Amendment No. 124 relates to a slightly different point. New section 171ZA(2)(c) uses the phrase ''ceased to work''. In a way, we have had this debate already, but I find that language thoroughly misleading. I understand that it is in the Bill simply because of the historical architecture of the legislation. However, it is clear that someone in the circumstances under discussion has not ceased to work for the employer; he has simply exercised the right to take leave. It is rather dangerous to go down that route, because in every normal sense of the word the person continues to work for the employer and is merely resting during two weeks of statutory leave.
If I am missing something, I am certain that the Minister will tell me, but notwithstanding the horrible language of the underlying Act, it would be sensible to remove the phrase
''ceased to work for the employer''
and insert instead
''exercised his right to take leave under section 80A of the Employment Rights Act 1996''.
That would be entirely clear.
The Minister might even think about tabling an amendment or new clause later that would clarify the matter wherever the Employment Rights Act uses the phrase ''ceased to work'', if it is misleading. That would make a clear distinction between the separate cases. The Minister gave an example whereby, under the maternity regime, someone who had genuinely ceased to work for an employer would be eligible for maternity pay. However, under the envisaged regime, no one who has ceased to work in the everyday sense of the word will be entitled to paternity pay, but someone who has merely exercised his entitlement to leave will be so entitled.