Employment Bill: Second Stage

Executive Committee Business – in the Northern Ireland Assembly at 11:30 am on 12th January 2016.

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Photo of Stephen Farry Stephen Farry Alliance 11:30 am, 12th January 2016

I beg to move

That the Second Stage of the Employment Bill [NIA Bill 73/11-16] be agreed.

I am pleased to bring this important Bill before the Assembly. It contains significant measures designed to strengthen our employment relations system through improving options for resolving employment disputes. It also supports careers development and apprenticeships in Northern Ireland.

Northern Ireland is the only region of the UK to which employment law is currently devolved. That provides us with the opportunity and responsibility to develop an employment relations framework that meets the specific needs of our region. While policy lessons can be and, indeed, often are learned from developments elsewhere — often there can be strong arguments for having a common framework for employment relations across the UK in some respects — we are not bound to follow a prescribed path.

The Bill, I believe, is a fair reflection of that approach. Its development has been informed primarily by my Department’s wide-ranging review of employment law, through which I have sought to identify measures to stimulate business confidence whilst maintaining the rights of individual employees. It has also been informed by positive engagement focused on enhancing the framework for careers development and apprenticeships, recognising the importance of investing in our most important resource — our people.

The Bill embraces the principle that employers and employees have common interests. What is good for business is good for employees, and vice versa. I do not regard reforms of employment relations, especially the measures within the Bill, as a zero-sum game, with a win for one being a loss for another.

I know that some consider that the absence of specific measures in the Bill detracts from its impact. In some cases, that absence is down to the fact that there is simply not sufficient evidence for change, while in others, there has been insufficient political consensus at this stage to enable us to move forward. I assure Members that the measures that are in the Bill have a strong, rational basis for implementation.

It is important to set out the context from which the Bill has emerged. The previous Government in Great Britain consulted on and then legislated for a range of employment-related matters during their mandate. Historically, Northern Ireland has sought, in the main, to mirror Great Britain on employment law matters. That approach brings the advantage of consistency, which has previously been recognised. Given the expectation from a range of stakeholders that those proposals would be considered from a local perspective, as well as my focus on developing solutions that are fit for purpose here, I sought views on what actions my Department should take on those matters.

It came as no surprise that employer representative organisations advocated a lighter touch to employment regulation on the basis that it would build business confidence and encourage employers to increase their workforce. Again unsurprisingly, the trade union movement believed that a number of the UK Government’s proposals were about weakening the existing framework of employment rights and that that would have an adverse effect on the economy. Bearing that in mind, my Department’s subsequent public consultation sought views and asked for examples of evidence on a number of employment law proposals under three main themes: early resolution of workplace disputes; efficient and effective employment tribunals; and better regulation measures. There were 40 substantive responses to the consultation.

The first theme, early resolution, focused on optimising opportunities for the early resolution of employment disputes and reducing the incidence of protracted conflict. Those matters are understandably important to employers and employees, and the early conciliation and neutral assessment clauses in the Bill reflect the outcome of consultation in that area.

Under the second theme, efficient employment tribunals, I sought views through separate public consultation between July and September last year. That built on extensive positive work with the tribunal service to develop proposed new rules and procedures that can largely be implemented through regulations and practice change. The Bill does, however, contain some short enabling powers to support those developments.

There are those who believe that an opportunity has been missed to follow the example of Great Britain by introducing fees to access and proceed through our tribunal system. I have explicitly ruled that out. As a means of dealing with unmeritorious claims, fees are a blunt instrument. While there are arguments about saving public money, the reality is that our tribunal service has substantially reduced its operating costs over recent years without the need for a fees mechanism.

The third theme of the employment law review, better regulation, encompassed questions on whether there should be changes to the following: the qualifying period associated with the right to claim unfair dismissal; consultation periods for collective redundancies; compromise agreements and protected conversations; and amendments to public interest disclosure or whistle-blowing law. Strong views for and against proposals were presented on a number of the better regulation issues, and none more so than on the unfair dismissal qualifying period. While that is an issue that particularly polarised employer and employee interests, at this stage there is no evidential case, nor is there a sufficient political consensus, for an increase to the qualifying period. The period will therefore remain at one year.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Minister is very active in encouraging economic growth and foreign direct investment. Does he not identify a negative in those terms in creating in Northern Ireland a shorter period of qualification for unfair dismissal claims and the absence of a cap in respect of awards? Does he not think that that creates a disincentive towards investment and puts us at a disadvantage compared with other parts of the United Kingdom where there are different approaches?

Photo of Stephen Farry Stephen Farry Alliance

I thank the Member for his comments. The comments that he articulated have also been made by a number of the business organisations that have advocated for a change in the law. The evidential base, however, has not been established for a change at this point. I appreciate that there are competing interests around all of this, but the reality is that there is not consensus in the Executive or in this Chamber that would facilitate any change in the law —

Photo of Stephen Farry Stephen Farry Alliance

In a moment. The matter remains live in the context that it is something that can be changed through secondary legislation. There are measures in the Bill that will tighten up the decision-making process around that, which I will refer to in a moment. So, if the balance of argument or political opinion changes, it is something that the Assembly or, more particularly, a future Minister, can return to with minimal obstacles to bringing something forward.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Minister for giving way. This is a point that I had intended to make in my substantive remarks, but, given that Mr Allister has raised it, I will throw it out now. The only evidence that exists on changing the qualifying period for unfair dismissal is the fact that, when they increased the qualifying period to two years in England, in the first year of that, we had record levels of investment secured by Invest NI. So the only evidence that exists on this matter proves that a qualifying period for unfair dismissal of one year does not have a detrimental or negative impact on our ability to attract inward investment.

Photo of Stephen Farry Stephen Farry Alliance

I thank the Member for his comments. I do not discourage Members from having that debate but, just to be clear, at this stage, we are not proposing any change to the qualifying period through this Bill. Those two things may have happened. There may be no link or no real detriment to investment through the current situation, but we do not have the evidential base to confirm that one way or another. Just because the two things happen at the same time does not mean that they are linked or that things could have been different. As for our internationally competitive position, the current situation around the qualifying period for collective redundancies of over 100 is probably a bigger issue for international investment but, again, that has not been changed in the Bill because, as the Member will be aware, there is not political consensus at this stage. The Assembly might want to return to that.

Arising from the point on unfair dismissal, I want to go on to stress that such changes to the qualifying period can be made through secondary legislation. The Bill makes a change in the current way that that could happen, as it is currently framed around confirmatory procedure and the Bill will change that to the use of affirmative procedure. That provides greater powers to the Assembly and increases the safeguards. The prospect exists at present of any particular Minister taking a decision that, ultimately, will not be confirmed by the Assembly but would, nevertheless, remain in place for a short time until the matter is brought to the Assembly, thereby creating confusion or, indeed, chaos in employment law. That is why we are moving towards the affirmative procedure for any decision that will be taken under secondary legislation by any future Minister in that regard.

It was also clear from the consultation responses that the current system allowing compromise agreements to be negotiated between an employer and an employee to end an employment relationship works well. It was also evident that the proposed system of protected conversations, which would allow such discussions, even where there was not an existing employment dispute, was viewed by many as controversial and likely to create unintended adverse consequences.

As I referred to, I found persuasive the arguments of those who considered that the 90-day consultation period for collective redundancies involving over 100 employees was unnecessarily lengthy. I was impressed by the arguments of the many consultees who made the point that it is the quality rather than the length of consultation that matters. I was also struck by the arguments against having three different collective redundancy periods — one in Great Britain, one in the Republic of Ireland and another in Northern Ireland. It is with regret that I have decided not to take forward legislation on the matter in the present Bill, as there is insufficient political consensus on the issue. There is a danger that the absence of change in that regard may ultimately undermine our competitive basis internationally, especially at a time when we are seeking to attract greater investment through the use of a lower rate of corporation tax.

The employment law consultation showed that there is widespread agreement with the view that the case law had created a legal loophole that permitted private contractual disclosures to be protected under public interest disclosure or whistle-blowing law. That was never the policy intention, and the Bill addresses that point. Also on the issue of public interest disclosure, I have been mindful of recent changes made in Great Britain by the Small Business, Enterprise and Employment Act 2015, and therefore, following a short, targeted consultation, I have agreed to include in the Bill provision to place a duty on regulators to report annually on whistle-blowing issues in order to provide greater assurance to whistle-blowers that action is being taken on their disclosures by the responsible prescribed person, and also to extend whistle-blowing protection to include student nurses and student midwives, who have been inadvertently excluded from it.

I want to acknowledge the contribution of stakeholders throughout what has been a very extensive consultation process. I am grateful, in particular, to the employment relations round-table forum, which brings together trade union and business representatives and is facilitated by the Labour Relations Agency (LRA). It helped to inform the development of key measures in the Bill. At this stage, I also want to put on record my thanks to the members of the Committee for Employment and Learning for their work on the review over the past number of years and, in particular, to express my gratitude to the Committee for the manner in which it is seeking to expedite the Committee Stage, not least given the pressing timescale that has arisen for various reasons with the end of this mandate looming. I look forward to engaging further with the Committee over the coming weeks. The input of all those stakeholders has helped shape the content of the Bill before us today, which I will now review in more detail.

Clauses 1, 2, 3, 6 and 7, together with the schedules, establish a framework for the new process of early conciliation to be delivered by the Labour Relations Agency. In effect, that will mean that, in most cases, a tribunal will not accept a claim unless the claimant can show that he or she has received an offer of conciliation from the LRA. Let me be very clear that the requirement is to show that conciliation has been offered, not to show that there has been engagement with conciliation. People will remain free to refuse conciliation or even to ignore the offer, although it will usually be in their best interests to consider it. I must stress that the absolute entitlement to bring a matter to a tribunal with or without prior conciliation having taken place will remain. The purpose of the clauses is to allow the LRA's conciliation offer to be placed front and centre so as to encourage resolution between employees and employers, where possible, without the need to proceed to an employment tribunal. Early resolution has clear benefits. Protracted disputes tend to damage or end employment relationships. Resolution before legal action starts is more likely to preserve those relationships and, in that respect, the assistance of a conciliation officer can be invaluable. In addition, where two parties can agree a resolution between them rather than have a decision imposed, there is an increased sense of ownership and empowerment that can help repair or maintain the employment relationship. Avoiding a legal process can reduce the time spent on a dispute; associated stress, legal and opportunity costs; reputational risks; and uncertainty of outcomes. My intention here is to switch the focus from claim to resolution.

Clauses 4 and 8 are also focused on promoting earlier resolution. They facilitate an optional neutral assessment service, allowing parties to obtain an expert indication of the potential outcome of their dispute. This is to help them stop and think about whether proceeding with their case is the best option for them by helping them to see potential strengths and weaknesses. This will be a novel service that does not operate elsewhere in the UK or in the Republic of Ireland, and it is therefore vital that we get it right. I have reviewed the evidence presented to the Employment and Learning Committee in that respect, and I take on board the points made, particularly by the Labour Relations Agency and the Council of Employment Judges. I accept that more work needs to be done before finalising the delivery model. The specifics of the service will need to be developed, taking into account the findings of a forthcoming review of the LRA's statutory arbitration scheme and of the early neutral evaluation service that is already being piloted by the employment tribunals, which I understand has been very well received. I will consider whether there is a need to review the drafting of clauses 4 and 8 to provide necessary flexibility in developing the final model.

Clause 20 extends confidentiality protections to the full range of LRA dispute resolution services; such protections currently apply to the LRA's statutory conciliation and arbitration roles. The clause, by protecting services of the agency generally, provides certainty for employers and employees that they can discuss matters in a free and frank way to find a resolution that works for both.

As I noted, my Department has consulted on revised and updated rules and procedures for industrial tribunals and the Fair Employment Tribunal, and the Bill contains short clauses giving my Department the necessary flexibility when finalising regulations in response to that consultation.

Clauses 5 and 9 give my Department broader scope to specify the circumstances in which tribunals can require parties to pay a deposit in order to proceed with a case that has little reasonable prospect of success. A requirement for a deposit is not the norm, but it is important for tribunals to have powers to ensure that parties unlikely to succeed in a case consider carefully whether it is appropriate to proceed. A party's ability to pay is considered when a deposit is set.

Concerns have been expressed about access to justice. However, it is necessary to acknowledge concerns consistently raised with my Department about the cost that can be faced by those who have to contest cases with little substance. I have ruled out the introduction of fees to access the tribunal system; however, it is important for us to address the serious concerns of those who bear the cost of contesting weak claims and responses. I am conscious of the need to preserve access to the tribunal system, and I assure Members that impacts will be fully considered before I agree the final form of regulations.

Clauses 10 and 11 contain enabling powers allowing tribunal chairmen to be referred to as "employment judges". That already happens in the tribunals, and it is reasonable to bring the regulations into line with that practice. It is a change in terminology only; it does not signal any change in the tribunal process. Unlike "chairman", the term "employment judge" is gender-neutral and better reflects the legal nature of the proceedings.

I noted the concerns raised by some Committee members on the issue. The reality is that when people go to a tribunal, they are going into a legal environment to get a legal decision. The term "employment judge" avoids potential confusion by making that clear. A majority of responses to the recent consultation on more efficient and effective tribunals accepted the change, and trade union representatives in their evidence to the Committee were more concerned about seeking an assurance that the tripartite constitution of tribunals was not changing. I am happy to give that assurance.

Turning to better regulation measures, my Department has not so far received substantive evidence that would justify a decision to increase the qualifying period for the right to claim unfair dismissal. However, the present mechanism for agreeing such a significant change to employment law is lacking in that the change could be implemented prior to a debate in the Chamber. If a change to the qualifying period is contemplated by a future Minister, I would like to ensure that there is an opportunity for the House to debate and approve it beforehand. Clause 21 ensures that that will be the case.

Clauses 12 to 16 deal with public interest disclosure or whistle-blowing. The importance of people in organisations having the confidence to report wrongdoing is key to ensuring that negligent, improper or illegal practices in organisations are addressed. Clause 12 introduces a public interest test to close a loophole in public interest disclosure legislation that allowed an employee to make a protected disclosure about a past, current or putative breach of his or her contract of employment, even though such a disclosure may have nothing to do with the public interest. Clause 16 includes student nurses and student midwives in the scope of whistle-blowing protection. They have been inadvertently excluded until now. The same clause establishes a power to amend, by order, the definition of "worker" for the purposes of whistle-blowing.

Clause 13 changes the effect of the good faith requirement. The intention is to maintain a focus on the primacy of public interest while creating a level of protection, through reduced compensation, where a protected disclosure has not been made in good faith. Clause 15 provides for employers to be vicariously liable if an employee suffers detriment from colleagues for having made a public interest disclosure.

Clause 14 will place a duty on regulators to report annually on the number of whistle-blowing concerns raised with them and whether they were investigated. The Bill also provides an opportunity to take legislative action to strengthen our approach to careers guidance and apprenticeships.

Clause 17 empowers the Department to make regulations concerning the continued delivery of a high-quality, impartial Careers Service by suitably qualified individuals. That was one of the key recommendations in the Employment and Learning Committee report, following its extensive inquiry into careers in 2013, and also featured in subsequent reports from employers’ representatives. The purpose of the clause is to ensure that everyone, irrespective of age or ability, has access to impartial careers advice to help them maximise their potential in a fast-changing and increasingly globalised workplace.

Clause 18 permits the Department to make regulations which, in effect, set out the components of and conditions under which apprenticeships will operate in Northern Ireland. The purpose of the clause is to ensure that the vision set out in the new apprenticeship strategy, which articulates a clear economic and social imperative for providing apprenticeship opportunities to grow the local economy, is appropriately defined.

In conclusion, I look forward to listening to Members’ comments in the debate and I commend the Bill to the Assembly.

Photo of Robin Swann Robin Swann UUP 12:00 pm, 12th January 2016

I thank the Minister for outlining the general principles of the Employment Bill and I am pleased to speak in the debate on behalf of the Committee for Employment and Learning.

The Committee has spent a considerable amount of time scrutinising the proposals that are now before the Assembly in the Bill. I know that the Minister said that the Committee is expediting the Bill, but I can assure him that in no way will we be taking any shortcuts or doing anything that invalidates our deliberations or due diligence on the Bill.

In fact, the Committee first considered the proposals on 25 April 2012, when the Department for Employment and Learning set out the policy context and its plans to consult on employment law. The concept has therefore been about for a long time. While the Committee has been discussing it, I think it has been mainly stalled within the Executive in bringing forward agreement.

The main themes of the Department’s consultation were to include the following: the early reconciliation of disputes; efficient and effective employment tribunals, and measures to reduce the regulatory burden of employment legislation.

The Committee welcomed the proposals concerning the early resolution of workplace disputes and effective employment tribunals. It also sought reassurances that the Department was not making life easier for businesses at the cost of encroaching on the rights of employees. The officials explained that the Minister was keen to strike:

“the right balance between encouraging investment in job creation, reducing the regulatory burden and protecting the rights of employees.”

On 4 June 2014, roughly two years later, representatives of the Department returned to the Committee to communicate the responses to its consultation on the review of employment law in Northern Ireland. The Department advised that stakeholders were very positive about the early resolution of disputes proposal and the creation of an early conciliation service in the LRA and that that could have the potential to avoid unnecessary tribunal cases and create speedier and less costly resolution disputes.

At that briefing, the Committee was informed that there was strong support for the closure of the legal loophole and the intention to make employers liable for detriment caused to a whistle-blower who genuinely blew the whistle on something that was in the public interest. The Committee also welcomed the proposal to extend the definition of "worker" to include student midwives and student nurses to bring them under the scope of the protection.

On the 10 September 2014, the Minister briefed the Committee on the term ahead and confirmed that the most significant reforms the Department was looking to address were as follows: the issue of early conciliation; the routing of all claims through the LRA; and the provision for neutral assessment. At that meeting, the Minister also proposed amending secondary legislation on unfair dismissal, so that any change happens through affirmative resolution.

Department for Employment and Learning officials formally briefed the Committee on the Bill at its meeting on 13 May 2015, where they confirmed that the Department was recognising the work of the Committee in legislating for careers guidance provision, on the basis of some of the recommendations in the Committee’s inquiry. The Committee strongly welcomes the proposals contained in the Bill as a result of its inquiry into careers education, information, advice and guidance.

At that briefing, the Committee asked the officials to explain what increased capacity will be provided to the LRA as a result of the Bill for it to take on the additional roles and responsibilities. An official outlined that the Department would compose a business case to determine the appropriate funding for the early conciliation model and the neutral assessment service. He assured the Committee that the consultees were also very keen to ensure that the LRA's resources would continue to be supported. The Committee notes that the explanatory and financial memorandum states that the service will be cost neutral. However, concerns have been raised over this, both from the Committee and through written submissions to the Committee, and the Department has confirmed that it is already engaging on this issue.

The officials confirmed that the Department will amend the law on public interest disclosure to introduce a public interest test in order to clarify that disclosures must be in the public interest. The Committee noted its desire for further protection for whistle-blowers by making employers vicariously liable if any employee who makes a protected disclosure subsequently experiences detriment from colleagues. Moreover, the Committee again confirmed its support for the extension of protection to NHS workers.

The Department confirmed that, given that there was no great desire for change in the consultation responses, it would not be taking any action to amend the unfair dismissal qualifying period in Northern Ireland.

The Department confirmed that, following on from the recommendations of the Committee's inquiry into careers guidance, the Bill will introduce a statutory duty for the provision of impartial careers guidance. The clause as drafted will introduce a regulation-making power in relation to careers guidance. The Department also confirmed that the Bill will introduce regulations that seek to define the core components of an apprenticeship in Northern Ireland. The officials advised the Committee that this would complement the Department's strategy on apprenticeships, 'Securing our Success', which was published in June 2014.

The Department briefed the Committee on 2 December 2015 regarding revisions to the Employment Bill. At that briefing, the Committee petitioned the Department to amend clause 17 on careers guidance by changing "may" to "shall" in the language on the duty to make arrangements to provide careers guidance to ensure that the Department has an intention to act. The Department took the Committee's concerns on board and, on 18 December, communicated its agreement that it would make that change.

The Committee raised concerns regarding the changes brought in by clause 11 whereby the chairmen of tribunals will be known as "employment judges". It was put to the Department that such a change in terminology would transform tribunals from a people's court into something more legalistic. The Department confirmed that it would feed those concerns back to the Minister.

The Committee also asked for an explanatory note on clause 22 of the Bill to clarify the technicalities of the amendment to statutory shared parental pay. The Department responded on 10 December 2015 explaining the three subsections of the clause, and the Committee was content.

The Employment Bill was formally introduced to the Northern Ireland Assembly on 7 December 2015, and the Committee immediately went out to consultation. The consultation closed on 21 December 2015, and nine substantive responses to the Bill were received. The nine submissions were from the Irish Congress of Trade Unions (ICTU), the CBI, the LRA, the Northern Ireland Commissioner for Employment and Skills, Law Centre NI, the Federation of Small Businesses (FSB), Donnelly and Kinder solicitors, the Engineering Employers Federation Northern Ireland (EEFNI) and the Council of Employment Judges. The Committee also received correspondence from the Employment Lawyers Group advising that it was broadly content and would not be making a formal response.

At our briefing, ICTU advised that it was broadly content with the substance of the Bill. However, it made the point that the claim that relaxing employment protection laws will increase employment and economic growth is not backed up by empirical evidence. ICTU also believes that the Bill was an opportunity to improve workers' rights but that, in some cases, that opportunity had not been taken.

CBI advised that it was broadly content with the substance of the Bill but noted that there would be resource implications for the LRA. The CBI also believed that more could be done by the LRA to ensure that vexatious claims are weeded out and the process speeded up. The CBI believed that the Bill is a missed opportunity to extend the qualification period for unfair dismissal to two years and to reduce collective redundancy consultation periods from 90 to 45 days for consultations involving over 100 employees. Both of those changes would have brought Northern Ireland into line with Great Britain.

The LRA responded on the clauses of the Bill that apply directly to its work, namely clauses 1,2,3,4,6,7,8 and 20. The LRA advised that it is content that those clauses meet their policy intent. However, it cited a number of challenges and pointed out that sufficient time is required to get ready for the changes outlined in the Bill and that the commencement date for the legislation should reflect that. The LRA also raised concerns about the resourcing of the changes.

The Northern Ireland Commissioner for Employment and Skills focused his comments mainly on clauses 17 and 18. Clause 17 is enabling legislation for the Department to make regulations for the impartial provision of careers guidance by qualified people. The commissioner points out that careers guidance should be backed up by unbiased evidence and that, ideally, it should begin at primary 6. Clause 18 is enabling legislation for the Department to make regulations for the provision of apprenticeships and can specify the target groups and the conditions under which apprenticeships will be made available.

The Law Centre stated that there is a need to ensure that the system proposed for early conciliation is not unduly burdensome on claimants and on vulnerable claimants in particular. The Law Centre believes that conciliation is most effective when both parties have access to legal advice and that the provision of expert advice to workers and small employers would make a significant contribution to the resolution of employment disputes.

The Law Centre welcomes the introduction of a system of neutral assessment but questions how that will sit with the early case evaluation by an employment judge that has been developed and extended in the tribunal system. The Law Centre welcomes the provisions in the Bill on protected disclosures. It also felt that zero-hours contracts should have been dealt with in the Bill and suggested the introduction of an enabling clause in the Bill that would allow the Department to bring forward regulations to address zero-hours contracts at this stage.

There were a number of broader issues that the Law Centre recommended the Committee should raise with the Department, including adjudication for straightforward or low-value claims and the non-payment of tribunal awards. Too many tribunal awards go unpaid, which undermines confidence in the whole tribunal process.

The FSB Northern Ireland welcomed the proposed early conciliation and neutral assessment services from the LRA and was content that settlement agreements already take place. So, there was no merit in renaming the practice as "compromise agreements". In its response, the FSB said that clear guidance and tailored advice is needed for small employers who need to have difficult conversations with some employees and that it would like to see the LRA’s role in that regard being promoted and targeted towards micro and small employers. The FSB was disappointed with the suggestion that the qualifying period be extended to two years to ensure Northern Ireland’s competitiveness and that the Department did not recognise the benefits of a cap that would provide employers with more certainty on the limits of the potential penalty to them.

Donnelly and Kinder welcomed the early conciliation service but suggested that non-binding conciliation includes a costs risk at the tribunal to a party that refuses to accept the recommendation of the conciliation officer. It felt that representation during the conciliation process should be limited to the parties and lay representatives, namely trade union officials, HR managers and a McKenzie friend, and that legal representation at the conciliation stage should not be permitted. However, it also believed that the extension of time limits to allow conciliation appeared to be confusing and could create an additional burden for the parties utilising the process. Donnelly and Kinder proposed that consideration be given to a mechanism by which some complex discrimination cases could be referred to the tribunal.

The EEFNI was disappointed that the opportunity has been missed to reduce the collective consultation period from 90 days to 45 days in line with Great Britain. It was also concerned that the additional burden on the LRA to deliver the early resolution model would dilute its other services if it was not sufficiently funded.

The Council of Employment Judges believed that the provisions in clauses 4 and 8 did not appear to be enabling provisions but rather those that expressly gave the LRA an expressed statutory power when there had been a failure to provide any provision for that power to be exercised. The council agreed that the absence of detail made it very difficult for it to provide relevant and meaningful submissions to the Committee.

On 6 January 2016, the Committee received evidence from four organisations that had previously submitted written evidence. The Committee also heard from departmental officials, first to brief the Committee on the Bill, and later to give a response to the issues raised by the Committee and the various stakeholders. The departmental officials advised the Committee that they were in consultation with the Minister about enabling regulations regarding zero-hours contracts. The Committee questioned the officials on whether Executive approval would be required for such an amendment. The officials confirmed that Executive approval would be required for the introduction of a new policy or any change to an existing policy.

The ICTU highlighted its concerns to the Committee about the need for the early conciliation service to be subject to a review concerning its functioning. The Law Centre mirrored those concerns, suggesting the introduction of a 12-month interim review and a subsequent three-year full review. The officials agreed that a review was an important part of setting up a new early conciliation service and confirmed that they would bring the suggested timescales for reviews back to the Minister.

The Committee, in echoing the concerns of both organisations, asked the officials if the proposed early conciliation model would follow the ACAS model currently used in Great Britain. Officials confirmed that they would be using the ACAS model to assess what lessons they can learn from its usage in GB in order to tailor it for the new early conciliation model in Northern Ireland.

ICTU also raised concerns regarding the changes to public interest disclosure legislation. It advised the Committee that it was concerned about the potential reduction in tribunal awards as a result of a disclosure being found to have been made in bad faith.

To remedy those concerns, ICTU wished to know whether the discretion of the tribunal would be under review. The Committee raised its concerns with the officials later in the meeting, and the officials advised the Committee that the reduction in bad faith was important to ensure that employees did not withhold important information in malice.

ICTU representatives suggested that the six categories of public interest disclosure should be extended to seven to include financial irregularity or to create instead a catch-all statement. The Committee questioned the officials as to whether there would be any challenge as a result of introducing a catch-all statement. They replied that they had not consulted on that but would take the Committee and the ICTU's concerns back to the Minister.

The Committee questioned the officials on why the negative resolution procedure was used for multiple deposits instead of the affirmative resolution procedure. The officials advised the Committee that they would bring the Committee's suggestion to use affirmative resolution to the Minister for him to respond.

The Committee again raised its concerns about the renaming of tribunal chairmen as "employment judges". Members were troubled by the legalistic impact of that change in terminology. ICTU wished to have the Department's assurance that the change was purely in name alone and did not alter the job description. The Department acknowledged that, in the responses to the consultation on the employment law review, there had been a mixture of opinions on the change, with some organisations echoing the Committee's concerns. The officials defended the name change as being a matter of consistency and to reflect the legal expertise of those employed in the role. They also confirmed that it was purely a change in terminology and that the role of employment judges would remain the same.

The Law Centre said that, although it was broadly content, it wanted clarity on several features of the Bill. They wanted the Department to clarify the time limits involved in the early conciliation service to ensure that claimants would not run out of time with their tribunal applications. The officials confirmed that they would bring those concerns back to the Minister. The Law Centre was also concerned about the lack of information on what stage in a dispute a neutral assessment would start. The Committee wanted to know when guidance about the neutral assessment service would be released. The officials advised the Committee that, given the novel nature of the neutral assessment service, the exact details were still to be confirmed but it was likely that it would not commence until 2017-18. The officials also advised the Committee that neutral assessment would be initiated only after litigants had first undergone the early conciliation process.

The Law Centre raised the issue of the need for personalised legal advice relating to employment disputes. The officials confirmed that it was important that the role remain with the specialised advice centres such as the Law Centre and Citizens Advice. It said that, although the Labour Relations Agency could not give personalised advice so as to maintain its impartiality, it could alert employees to their rights in the dispute. Further, the Department emphasised the role of early neutral evaluation run by the tribunals service.

The Labour Relations Agency highlighted its concerns about the simultaneous commencement of two new schemes; namely, early conciliation and neutral assessment. The officials reassured the Committee that the early conciliation service would be embedded first, in line with an appropriate review of the Labour Relation Agency's statutory arbitration service. The Committee queried the timescale for the review of arbitration services, and the officials confirmed that they were hopeful that the review would take place over the next year.

The Northern Ireland Commissioner for Employment and Skills communicated his disappointment to the Committee that more had not been done on providing apprenticeships in clause 18. The departmental official responsible for the apprenticeship strategy confirmed that the focus of clause 18 was to support apprenticeships and that they would take the commissioner's concerns back to the Minister. The Committee also raised the non-payment of tribunal awards, and the officials confirmed that they would provide the Committee with available statistics on the issue. Finally, the officials said that they were aware of the issue of resourcing the Labour Relations Agency for the purpose of the early conciliation service and the neutral assessment service and that they were in discussions with the Minister concerning the matter.

I look forward, as usual, to working with the Minister and his officials, who have been very obliging to the Committee, on the progress of the Bill.

Photo of Thomas Buchanan Thomas Buchanan DUP 12:15 pm, 12th January 2016

I welcome the opportunity to speak at the Second Stage of the Employment Bill. The Bill, which deals with the review of employment law, has been under consideration for the best part of four years, having first been considered in Committee in April 2012. Given that the Chair of the Committee has outlined in detail all the work of the Committee and the stakeholders and departmental officials we met, I intend to keep my remarks fairly brief.

It is fair to say that the Department's objectives of identifying opportunities to reduce regulation and administrative burdens on businesses while protecting the rights of individual employees under the three key themes — the early resolution of workplace disputes, efficient and effective employment tribunals and better regulation measures — have, in general, received a broad welcome from all stakeholders. Everyone wants to see less bureaucracy and a more effective and efficient streamlined system. However, while broadly content with the substance of the Bill, all the respondents raised some issues of concern, disappointment or missed opportunity. For example, the Confederation of British Industry, the Federation of Small Businesses and the Engineering Employers' Federation were among those that expressed disappointment and felt that the Bill was a missed opportunity to extend the qualifying period for unfair dismissal to two years and reduce collective redundancy consultation periods from 90 days to 45 days to bring us into line with Great Britain. That, they argue, would ensure Northern Ireland's competitiveness and encourage inward investment and indigenous growth. The Minister responded to that in his opening remarks. While he does not intend to bring it forward in the Bill, he is happy to put provision in so that it can be dealt with at a future stage.

Early conciliation was one of the other proposals that was brought forward by the Department to help to address disputes in businesses at an early stage. While that is welcomed, I think, by all, some issues and concerns have been raised around the matter. The Law Centre Northern Ireland is at pains to point out that any such system must not be burdensome to the claimants and that a balance, therefore, needs to be struck. The LRA has quite legitimately expressed its concern at the resourcing of the changes in the Bill that it is responsible for delivering. That concern has also been voiced by the Engineering Employers' Federation, which feels that the additional burden placed on the LRA has the potential to dilute the other services that it provides. I have to say to the Minister that that is a real issue that has been raised and has come before the Committee. I know that a business case is being drawn up or put in place at the minute, but the funding of the LRA and being able to deliver the changes and the new provisions in the Bill are essential if we want to see this progressing and delivering in the way that is intended.

Other issues that were raised in Committee have already been addressed by the Department, and provision has been or is being made for them. I am not going into them; we went through them in Committee and found agreement. All in all, I support the Bill. I look forward to working with the officials and the Minister at Committee Stage as the Bill progresses through the system.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

Go raibh maith agat, a Phríomh-LeasCheann Comhairle. I welcome the progress on the Bill and commend the Minister for sticking with it. He has been at it for some time, as we have heard. He has faced considerable difficulties in progressing it, but he has succeeded in getting it through the Executive and onto the Floor of the Assembly, so I commend him for his efforts and success.

It is important to highlight that, even though this has been going on for more than four years, it is better to get it right than do it fast. It is good to see that the Employment Bill has reached this stage. Hopefully, it will progress through the rest of the stages. There are some changes that need to be made to employment law to offer a better system for employers and employees. It cannot be a one-way system where some people say, "This is a missed opportunity to eradicate workers' rights". We cannot have an agenda like that around here; that is not what we are here for. Anybody who adopts such a proposal really needs to reflect on where they are coming from.

In his contribution to the debate, the Minister has adopted a very pragmatic approach in trying to get consensus from not only all the political parties but wider society. At an early stage, he made a worthwhile effort to bring together employers and employee representatives, along with the LRA, to find pragmatic solutions that everybody could buy into.

The easiest solutions that we as political representatives could have got support for are those that were brought forward together by employers and employee representatives. So, I commend the Minister for the pragmatic and progressive approach that he took in that matter, and for the manner in which he has listened to the feedback that has been brought to him by people from both sides of the argument.

We need to take a look at our employment laws, see how they meet the needs of employers and employees and bring forward legislation that allows us to continue to oppose the efforts that are being made to circumvent the rights of working people. We see it day in, day out; working people are being treated abysmally by a very small number of employers. There is an onus on us, and we have a duty here, to make sure that such abuses are not tolerated, and it is important that we use an opportunity such as this to tackle those abuses. All too often, we see the individual — the worker — being treated disgracefully by their employer. We see the likes of Sports Direct, which is completely out of control, with zero-hour contracts and how it treats its staff. There is a responsibility on us as an Assembly to make sure that there is proper legislation and regulation in place to protect those workers, and then to ensure that workers have the right to challenge those practices and to bring them forward in whatever setting best meets their circumstances.

In the broadest sense, one of the clearest messages that all of us got back through the consultation period was that employers and employees want to see these matters dealt with in as informal a way as possible. The majority of people want to see conciliation or agreement reached outside a formal tribunal setting, if that can be done. Nobody wants to have to go through a formal employment tribunal, because it is a complex and burdensome process. Offering opportunities for resolutions to issues of this nature outside the formal tribunal setting is something that we should continue to explore at every opportunity. However, that should not be done in a way that reduces the rights of workers or employers to defend themselves against claims for maltreatment. The formal tribunal setting has significant costs for the former employee who is taking the case and for the employer who is defending themselves, and the running of the tribunals has a significant cost for the public purse. So, it is important that we find a way that meets the needs of everybody and tries to remove what is a very stressful environment from everybody.

If we look back at the history of employment tribunals, we see that they were set up with the intention of being similar to the small claims court, where there would have been little need for legal representation. However, as a result of complexities in employment law, due to directives from Europe, and a large number of appeals to decisions of employment tribunal panels, there now seems to be a requirement for solicitors and barristers to be involved in employment tribunals. That brings me on to one of the issues that the Minister and the Committee Chairperson raised in their eloquent contributions in which they summarised the issues around the Bill. The renaming of employment tribunal chairpersons to judges has caused concern. The majority of that concern comes from the potential for an individual to be sitting alone in an employment tribunal. So, it was good to get confirmation from the Minister, today, and from his officials, last week, that renaming employment tribunal chairpersons as judges will not change that and give them the right to sit in isolation on a panel. That was one of our major concerns, so it was good to get that clarity from the Minister.

Providing an option for adjudication for straightforward, low-value claims is something that we should do more work on before the Bill reaches the end. The Minister and his Department have said that they are open to considering its potential as part of their proposed review of the Labour Relations Agency's arbitration scheme. I would like to hear from the Minister, in his closing remarks, a concrete commitment that such a matter will play a role in that review, rather than him saying that the Department is open to considering its inclusion. Maybe the Minister will reflect on that between now and his making his closing remarks.

Employment tribunals, by their nature, are complex for all parties, and changes need to be made to make them easier for everyone to access. It should not be the case that, for a worker or employer to go to an employment tribunal, they need to hire solicitors and barristers and pay out thousands of pounds to take a case or to defend themselves, because, generally, the cases that go to employment tribunals are often of a low value. The fact that you have to hire a solicitor or barrister to have any realistic chance of winning presents a barrier to people accessing justice. We need to review that.

Some of the proposals that were under consideration and that, thankfully, have been rejected by the Minister to date present a very worrying picture. In England, fees have been introduced on claimants seeking to access a tribunal. This has led to a significant decrease in the number of claims and a knock-on denial of rights through reduced access to justice. I am glad that the Minister, from the outset, has rejected the approach of introducing fees for people who want to access employment tribunals because, the way that it is going, it is already costly to hire legal representation to get into an employment tribunal, and adding fees to that would be a significant barrier. At present, tribunals can impose deposits of up to £500 on some claims, which would be retained in the event of a case being lost. Now, £500 might not seem like a lot of money but, for someone who has just lost their job, potentially through an illegal act by an employer, it is a significant sum. That presents a serious problem for people who want to access justice, particularly for those who are in part-time employment or who work in a non-trade-unionised environment. We need to be very careful that we do not present too many barriers in what seems to be a drive to eradicate workers' rights and that we do not erect barriers that cannot be overcome for some people to access justice.

There was, then, the option of a claimant being made subject to multiple deposits for taking a claim. I hope to hear from the Minister that he has absolutely no intention of pursuing multiple deposits, because that would be completely outrageous. People taking a claim for unfair dismissal or other matters could be hit with a £500 deposit for each of their single claims as opposed to one for the case overall. I would like to hear the Minister give a commitment at the end of the debate that multiple deposits will not actually be included. I would also like to hear whether he would be in favour of putting on the face of the Bill that multiple deposits should not be allowed through future regulations. I am keen to explore that because I am fundamentally opposed to multiple deposits.

The way in which future regulations on tribunals and deposits would be dealt with has been outlined. They would be subject to negative resolution so the Minister or, indeed, his successor could decide at any time to change the law without the Assembly's approval. I think that we need to change that so that the Minister must get the Assembly's approval before introducing such changes to either tribunals or deposits, as he has proposed to do in changing the qualifying period for unfair dismissal claims. That is a much better way to introduce regulations of that nature. It provides clarity for all those involved in the process because what happens with the negative resolution mechanism is that the law can be changed and then quickly changed back if the Assembly votes to reverse that decision. It would be much better to use affirmative resolution on matters pertaining to tribunal changes in the future. I would like to hear from the Minister whether he would support such a change. We discussed that at length at the Committee last Wednesday. There was considerable support for it around the Committee table. I would like to hear from the Minister whether that is a change that he would consider bringing forward through a further amendment.

The Bill as a whole does strengthen workers' rights in some aspects. I think that everybody would acknowledge that, whether you are on one side of the argument or the other — whether you approach it from protecting and enhancing workers' rights or an effort to reduce and eradicate those rights — the Bill is not as comprehensive as either side wants. What we have is consensus in the middle where we have found agreement on a Bill that does make some changes but does not go as far as either side wants. It strengthens workers' rights in some aspects. As I have said, it changes the rule on amending the qualifying period for unfair dismissal so that the affirmative resolution process is in place and the Assembly must give its consent before any changes take place. I think that that was supported by employers and employees because nobody wants a situation in which the Minister or his successor decides that they will change it to two years, three years, 20 years or 40 years — who knows what a future Minister would decide? It would become law immediately or from whenever the Minister says. There would then be the possibility that the Assembly could overturn that decision. That would introduce chaos into the system because nobody would know what the system was, what the rules were or what the current legal framework was. Moving the qualifying period for unfair dismissal cases to affirmative resolution is a very welcome step. I commend the Minister for it.

We have heard that some in the House and some employers want to see the qualifying period extended to two years.

As the Minister has said, however, there is absolutely no evidence that it delivers a positive impact for the economy, as some tried to argue. All it does is diminish workers' rights without having a knock-on impact for anybody apart from employers that want to treat their staff badly. Some employers will tell you that it makes it easier to hire staff, knowing that you have up to two years to sack them without them having any recourse to an employment tribunal for unfair dismissal. In effect, all it does is make it easier to fire staff, because you have two years when you can get rid of a member of staff for any reason you see fit, and they have absolutely no legal recourse to challenge that decision.

I think that offering a year is a good compromise. Some of us want to see it reduced and some of us want to see it increased to two years but, from an employer's point of view, if you have not figured out after a year whether the employee is fit for the job, that is not the employee's problem. Twelve months is long enough to figure out whether somebody is fit for the job, whether they need additional training or whether it is just not working out. None of the arguments for extending it to two years washed.

As we have heard, the issue of whether the period should be one year or two years is a key factor in determining whether inward investors will locate here and create employment. As I said to the Minister earlier, in the first year after the increase from one year to two years was introduced in England, in the subsequent year here Invest NI secured record levels of investment, so there is absolutely no evidence that having a qualifying period for unfair dismissals has a negative impact on attracting inward investors to this place. Whatever evidence people have brought forward does not stack up, and it is merely a completely unfounded attack on workers' rights. You will have gathered at this stage that I am opposed to any such proposal. I am glad to see that no extension to the qualifying period stands as part of the Bill.

At an early stage, the Bill also sought to reduce the compulsory collective redundancy consultation period from 90 days to 45 days in respect of consultations involving over 100 employees. I see from some of the consultation responses that were sent to the Department on the early consultation stages that some people actually wanted less than 45 days. Some people argue that it is not the length of time of the consultation but the quality of the consultation that is important. I am happy to see that that has been removed. In recent times, we have seen far too many multinational employers laying off significant numbers of staff. In fairness to some of them, they have been very open and honest with their employees and treated them very well, but not all employers go about their business in such a good way. We have to legislate for all employers, not just for the good ones. We have to introduce legislation here that will stop bad employers abusing their staff.

Reducing the requirement for employers who are involved in collective redundancies to engage with employees and their representatives would be a deeply regressive move and is not something that we should be exploring. When a multinational company is considering downsizing one of its sites around the world, one of the key factors that it will take into consideration is the cost of laying off staff. Unfortunately, we do not impose as high a standard here on companies as happens in other parts of the European Union. Instead of simply seeking to reduce the length of time that employers need to engage in a consultation period with staff and their representatives, we should explore how those companies that are going to carry out that consultation period — which is a deeply traumatic time for people when they are being told that they and all their work colleagues are losing their jobs and the plant might be closing down — can demonstrate more openness and transparency to set out the details of why they are engaging in such an action. That will give employees and their representatives some chance to engage properly in a consultation period.

The Minister said that an argument has been made that it is the quality of the consultation that counts. If the consultation consists of, "We are closing this factory. You 1,000 people are losing your jobs. What do you think about that?", it is not much of a consultation. You are not giving the employees much of an argument to engage in a consultation to try to change the minds of the people who make the decisions. Then, maybe, it is not a consultation at all; perhaps it is just some way of closing a factory and putting a positive spin on it. More needs to be done in looking at how other EU member states are doing in providing information when significant numbers of jobs are being lost. That could be explored further through the Bill.

One of the biggest opportunities in the Bill — I am surprised that it has not been raised more today; we have not grasped it collectively to date — lies with how we tackle the scourge of zero-hours contracts on our workers. It is one of the biggest employment issues of our time, and, collectively, we do not yet have solutions. The Minister made valiant efforts to get cross-party support, but, despite those best efforts, no legislative proposals have been brought forward. As a result, the estimated 28,000 workers who are on zero-hours contracts are left without adequate protection from the abuses of some employers. We need to deal with the issue now. Between now and Consideration Stage, we need to try to find consensus on positive interventions that can be made to deal with zero-hours contracts. It is clear that some employers are completely abusing their staff. We have a responsibility to introduce effective legislation that addresses and prevents those abuses.

Companies such as Sports Direct phone people and tell them that they can come into work, and, when they get there, they are told that there is no work and that they can go home. Those actions are completely unacceptable and should not be allowed. Staff are kept behind after work to be searched to make sure that they are not stealing stuff. Although the time that staff have to remain on site is directed by the company, they are not paid for it. If people arrive one minute late for work, they are docked 15 minutes' wages, which is completely unfair. If you are one minute late for work, you should be docked for being one minute late not 15 minutes late.

How do we deal with zero-hours contracts? Some of the measures that the Minister had proposed to bring forward were fine, and I had no problem with them. My problem was that they did not go far enough. The Minister had a legal definition on how to deal with zero-hours contracts. He wanted to ban exclusivity contracts, with some exceptions for specialists such as highly skilled people in some industries, and that is fine. He had a range of progressive measures, but we need to go further than that to make sure that low-paid, non-unionised workers, in particular, are not being abused. Those people should be the focus of the Bill. The Bill should not be about giving rogue employers the chance to abuse their staff.

There is an onus on us to protect the most vulnerable in our society. With the Employment Bill, the most vulnerable are those in low pay who are not part of a unionised workforce and are working for bad employers. There is a small number of very bad employers out there, and we need to tackle them. There is an abundance of evidence on how staff are being abused by employers, and the Minister needs our collective goodwill to try to find a solution. I am more than willing to work with him over the coming weeks to try to find such a solution.

We are behind the times in dealing with some of these issues. In England, if the Tories were allowed, they would remove every single legislative right for workers and take you back three or four centuries. Thankfully, we do not have that. We are lucky that employment law is a devolved matter, and we need to bring forward legislation that protects the people whom we represent. There is an opportunity for the Minister and for us as an Assembly to show positive leadership to people who are looking for creative solutions on how to deal with issues such as zero-hours contracts.

It seems to be a new problem, and it was not raised 30 or 40 years ago. The problem now is that somebody will tell you that we are nearly in full employment, and very few people are on the dole and claiming benefits. That may be the case, but those people cannot get a full-time job; they cannot get the living wage or enough earnings every week to take them out of poverty. They may not be on the dole and may not count as a statistic because they are not claiming jobseeker's allowance, but they are just as badly off as if they were on the dole. They are precarious workers who have no guaranteed income every week. They have no idea what they will earn in any week or how many hours they will work. There is a massive opportunity for us to take the lead and to bring forward imaginative solutions on how we tackle zero-hours contracts and address them once and for all.

Photo of Basil McCrea Basil McCrea NI21 12:30 pm, 12th January 2016

I thank Mr Flanagan for giving way. When you are trying to tackle all these issues, have you thought about the implications for employment? The argument is that, if you make it more draconian to employ people, you actually employ fewer people. Surely there is a middle way whereby you can find a way not only to secure the rights of workers but to encourage people to invest in their workers for the proper reasons.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I have absolutely no problem in finding a middle ground that meets the needs of employers and employees, but, at the minute, the pendulum has swung too far in the direction of rogue employers who want to abuse their staff. There is absolutely no legal protection for people who are on zero-hours contracts.

The Minister proposed bringing forward what I think was a statutory code of conduct to govern how employers needed to act with zero-hour contracts. It was a fairly sensible proposal and something that I would support. I have no problem with Basil's suggestion that we need to find a middle ground that meets the needs of employers and employees. I accept that draconian legislation may well act as a barrier to investment, but I think that some people argued that with the minimum wage and some people tried to argue it with the living wage. Forcing people to live in poverty with badly paid jobs where they have no rights is not the kind of society that I want to live in, and I hope that it is not the type of society that some in here want to force on our people. We hear talk in here about competitiveness: "competitive" seems to be a code word from some people for reducing workers' rights, reducing pay to staff and giving employers greater ability to abuse workers.

I commend the Minister for the platform piece he has in 'The Irish News' today about the need for the Assembly and the Executive not to disinvest in skills and about the challenges he faces as the Minister with responsibility for further and higher education, but I take umbrage at one point that he raised. He said that we cannot disinvest in FE and HE: I agree with that completely, but the reason he gives for that is that we will then have a situation where there are fewer skilled workers and their wages will go up because of that shortage. I think a situation where the wages and rights of workers are going up is a good thing. We should look for an economy where people are paid a high rate. For me, that would be a good thing.

This talk of competitiveness is a code word for getting rid of well-paid jobs and forcing people to live in poverty. I do not buy the notion that competitiveness is necessarily a good thing when it is coded in the parameters of us having to bring forward an economy and society where people are treated like numbers and not like human beings. That is not good enough, and we should not tolerate that agenda. Making it easier for employers to sack staff and to treat them badly is not increasing competitiveness; it is a smokescreen to allow the reintroduction of centuries-old employment law practices. We should not go down that road. We need to look for progressive legislation that enhances the rights of workers —

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I will in a minute.

That enhances the rights of workers and increases productivity. Productivity should be the key thing, not this code word of "competitiveness", which, as I have articulated and outlined, is not a good thing when it is set in that context.

Photo of Basil McCrea Basil McCrea NI21

I am sorry for intervening a second time, but I would just like to know the Member's position on this. He talks about zero-hour contracts and about how that seems to be a way for employers to avoid responsibilities under employment legislation. I wonder what his feeling is about agency working, because that seems to be another way that employers avoid certain responsibilities. They do not actually employ the staff; rather, they contract an agency that employs the staff. I think the Member will be aware that Bombardier recently announced that, because of the economic downturn, it has had to make some adjustments to the workforce. That adjustment falls solely on the agency staff, not on the core workers. It seems to me that we have a two-tier environment working here. Perhaps the Member might consider whether we should address that issue as well.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Member for his intervention. I make the point that the Committee for Employment and Learning is much the less for his absence. He is sorely missed from it, although his shoes have been ably filled by Mr Swann for a number of years.

The anomaly of agency workers is something that the Assembly has tried to address in the past, and I think the Minister has made valiant efforts to resolve that problem. But one of the problems we faced before when we raised the issue of zero-hour contracts was that, if you bring in legislation, some employers who genuinely want to treat their workers badly will find a way to circumvent the legislation. That is the problem we face: no matter what legislation we bring in here and no matter what solution you put in place, there are some employers out there who just do not want to treat their staff right. That is the case whether they are directly employed or are agency workers. Thankfully, it is a very small number of employers; they are very much in the minority. All the evidence we see is that the vast majority of employers are responsible people who want to pay their staff well, treat them well and give them a good work-life balance. Unfortunately, some companies just do not want to do that, because they see their bottom line in a financial number, without any ethical or moral duty or obligation to their employees as their principal focus.

I completely agree with Mr McCrea's comments about agency workers. It is something that we will have to tackle, and it is getting out of hand. I have mentioned Sports Direct twice in my contribution, but, once again, Sports Direct is another organisation that completely abuses agency workers. As with zero-hour contracts, we need to find a creative and imaginative solution for dealing with the problem of agency workers. I am prepared to sit around the table with Mr McCrea, the Minister and anybody else who is interested in having those discussions to see how we can find those solutions.

Photo of Robin Newton Robin Newton DUP

Before I call Ms Claire Hanna, I remind her that the Business Committee will meet at 1.00 pm and I may need to interrupt her if we reach that time.

Photo of Claire Hanna Claire Hanna Social Democratic and Labour Party

Thank you, Mr Speaker. I am keen to get out of here for lunch and be finished up, so I intend to wrap up. I know that a lot of the issues have been explored at length. There is a lot of the Bill that we welcome and, I know, most stakeholders welcome. It is important that it all gets through. As we have talked about, there is that balance to be struck between flexibility for employers and the rights of employees. I think that is done reasonably well in the Bill, but there are omissions, primarily around zero-hour contracts. I will come back to those.

The measures on public interest disclosures and whistle-blowing are certainly good, because the discrimination and disadvantage that people have experienced has not always been top down from their boss. It is appropriate that that provision is extended to someone's colleagues. The issue around the good faith motivation is complex and may need a little more exploration. We do not want a situation where we discourage someone from making a disclosure that is in the public interest. Yes, we want to know that their motivation is right, but at the same time we do not want to lose that information.

We think it is very positive that the mandatory consultation on redundancies has not been cut to 45 days. Employers of that size — over 100 employees — often sustain a large community in employment. For that to disappear in six weeks without a lot of consultation could be absolutely devastating. It is right that that time is protected. Again, that is one of the issues where the balance between capital and labour would have swung very strongly in the wrong direction.

All of the additional guidance on issues around managing staff, conduct and discipline is also good, particularly for smaller companies that do not have a full-time human resources department and all the polices, codes and so on. The fact that people can fairly and legally manage an employee situation or extricate themselves from that if it is really not working is welcome, without necessarily tipping us into tribunal situations.

We also cautiously welcome but want more detail on the creation of the conciliation function and the neutral assessment within the Labour Relations Agency. It appears that some of those conversations and the consultation have produced valuable outcomes. I know that the Labour Relations Agency now has a round-table and stuff dealing with that. Given the stress, time and, in the case of the employer in particular, cost around those tribunals, it is right that people can get an early and fairly solid assessment that is not just an opinion on the merits or otherwise of their case and save everybody a lot of time and effort. With all of the new legislation around employment over the last years and decades, particularly from Europe, it is inevitable that that has become quite legalistic. We are broadly comfortable with the changes in the terminology around that, in the knowledge that there will be guidance and so on provided, particularly for vulnerable employees.

While we do not want to overburden employers, you always have to remember that, if something takes the burden away from the employers, it almost necessarily makes it a little bit onerous. We do not want to have a situation where a legitimate appellant cannot have a satisfactory outcome to their case. If I understand the Minister correctly, the framework for allowing for fees will not be used. That is useful, because it would price out, in particular, those who do not have union representation, which, statistically, is likely to be younger workers and those in the private sector. It is also, as, I think, Mr Flanagan outlined, the layers of complexity in a case if you cite a number of issues or, indeed, if you cite a number of people that could, in theory, accumulate thousands of pounds in deposits. That would not be good, and it was good to get clarity that that is not the case.

It is all good stuff. We and the stakeholders are pleased that it looks like it will get through, but, if you were being critical, it could be seen as a bit limited given how long it has been in the pipeline. I only picked this issue up this week — obviously, Pat Ramsey was leading on it before the break — so I do not know if it is a departmental or Executive oversight that we have not dealt with zero-hours contracts, but they have not been meaningfully addressed. While they might come in through amendments, something this big should not be dealt with in emergency amendments. Indeed, it would probably derail the Bill and all the other good stuff that we all want to get through in this mandate.

Zero-hours contracts are undermining decent work. Mr Flanagan said that they were one of the big employment issues of our time, and they are. Three years ago, I brought a motion to Belfast City Council asking that that organisation, as one of the major employers in the city, do not use them, and I am glad that that was successful. Three years on, we have not made any progress in the wider legislative framework. People will be aware that, effectively, a zero-hours contract creates an on-call arrangement between the employer and the employee but does not necessarily provide work and, in some cases, locks the employee into work for just that company. The concept has been around for a long time — men used to come back from the shipyard without having got any work — and abuse of it has been around for a long time. People have been looking for any reason or no reason at all to withdraw hours as a punishment, and it very much limits the ability to assert other employee rights.

Of course, the arrangement will suit some people, such as students or retirees who do not have fixed outgoings and maybe can be a bit more flexible with their time. I appreciate the appeal for employers: it allows maximum flexibility to respond to demand and minimise risk, and is that not what the free market is all about? You can exploit whatever is out there, whether it is raw or human potential. However, we see the price of that being paid by the increasingly precarious layer of workers who, in the main, are probably women and earning around £500 per month. It is a way for unscrupulous employers to, in some cases, avoid paying them properly and giving them other employment rights. As others have suggested, it is a way that unscrupulous Governments, if they so choose, could mask underemployment rates and unemployment rates. It is important that we look at that aspect.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

I do not want to be uncharitable just before lunch, but I am not sure whether the Member is supporting the introduction of amendments for zero-hours contracts or thinks that it is too difficult. As you rightly said, you brought it to Belfast City Council. I think that it is an issue that we maybe ought to be looking at, or do you think that we just do not have time?

Photo of Claire Hanna Claire Hanna Social Democratic and Labour Party

I think that we should, and I am about to suggest some specific amendments. I do not think that we want to be in the business of outlawing them. As I said, there are situations where they can work, but you can ameliorate their very worst aspects.

I am not an expert on how quickly Bills move through, and, as I said, we do not want to throw the baby out with the bathwater. We do not want to lose the good things that are in the Bill. That is why I do not really understand why no movement has been made on zero-hours contracts, through this Bill or generally through the Executive. I will propose very briefly some ways that we might take the sting out of them — and the sting has to be taken out. It always bemuses me that family values are seen as a preserve of the right. Zero-hours contracts are a very right-wing tool. You cannot have a family. They are fundamentally anti-family, with the degradation of good, decent employment that we see through things like zero-hour contracts. You cannot access formal childcare, you cannot plan for childcare or looking after an elderly parent, and you cannot really train for a better job when you do not know whether you are in or out one day or the other.

When I was doing my research for that Bill a few years ago, there were thousands of these contracts in Northern Ireland, and we know that they have grown, but, basically, there should be a few smaller provisions that do not strip them out entirely. You give anybody who has done 12 weeks' work on a zero-hours contract the right to a contract based on that average time; you end the provision that people can require an employee to work with just one employer; and you end the misuse where people are working basically regular hours on a regular contract for a long time but are being denied that contract and basically —

Photo of Robin Newton Robin Newton DUP

I ask the Member to conclude her remarks, or I will have to interrupt her.

Photo of Claire Hanna Claire Hanna Social Democratic and Labour Party

Yes, I will. I will do it by 1.00 pm. The balance of flexibility is not an excuse for exploitation. We welcome everything else in the Bill, and we think that we could get some of those minor provisions. We are not saying that it should be banned — we appreciate that it has its use — but we should take the worst aspects out for those who are bearing the brunt of it.

Photo of Robin Newton Robin Newton DUP

The Business Committee has arranged to meet at 1.00 pm. I propose, therefore, by leave of the Assembly, to suspend the sitting until 2.00 pm. The first item of business when we return will be Question Time.

The debate stood suspended. The sitting was suspended at 12.59 pm.

On resuming (Mr Deputy Speaker [Mr Dallat] in the Chair) —