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Clause 39

Apprenticeships, Skills, Children and Learning Bill – in a Public Bill Committee at 2:30 pm on 12th March 2009.

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Employer support for employee study and training

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I beg to move amendment 103, in clause 39, page 18, line 5, leave out ‘A’ and insert

‘Where an employer does not have acceptable annual arrangements for discussing employees’ training needs in place through annual performance reviews or other arrangements, a’.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to discuss the following: amendment 77, in clause 39, page 18, line 23, at end insert—

‘(6A) An employee is also a qualifying employee for the purposes of this section if the employee is a qualified school teacher with responsibility for educating children with special educational needs and who requests training to ensure the needs of these children will be met.’.

Amendment 11, in clause 39, page 20, line 30, at end insert—

‘(k) a documented discussion of training needs resulting in a decision on whether to extend such provision to the applicant took place within the previous 12 months.’.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

It is a pleasure to take over the shadow ministerial baton from my hon. Friend the Member for South Holland and The Deepings. Henceforth, there will be no more juicy or ursine prose from Opposition Members. Our contributions will become more prosaic and, if I may so, a little dull—with the Liberal exception, of course. I am sure that we shall be hearing plenty of ursine and porcine phrases from Liberal Democrat Members.

Clause 39 is an important provision giving employees the right to request time off to train or study. Proposed new section 63D(3) of the Employment Rights Act 1996, which the clause would insert, states:

“The application must be made for the purpose of enabling the employee to undertake study or training (or both)”.

It is refreshing to see a reference to study and training in an education Bill from the present Government, rather than the catch-all words “learning” or “learner”, which have become the latest jargon designed to obfuscate rather than to clarify. “Time to Train”, the consultation document published last year by the Department for Innovation, Universities and Skills, talks about giving employees

“a right to a serious conversation with their employer about their skills development”.

The Conservatives agree with that right. The proper training is essential in any business—for example, restaurant staff should know the details of a menu. I am sure that the staff at the restaurant that my hon. Friend was at last night knew the menu backwards and were able to describe it to him extremely well. Other examples showing how the right training is essential include doctors in a GP surgery, accountants providing tax advice and employees fitting components on an assembly line. A business that fails to train and develop its staff will not be successful. Sometimes, however, an employee’s personal ambition might be overlooked by an employer. An employer might be happy, for example, to let a good kitchen assistant continue in that role rather than let them train to be a chef. Another example could be a staff and associate specialist doctor who wants to train to become a consultant.

The impact assessment states:

“Over a third of people with poor literacy and numeracy receive benefits...compared with less than one in ten of those with better skills.”

That is why the Conservative party makes no apology for its focus on reading in primary schools, or for its insistence that, instead of the whole-language approaches that have dominated over the past 40 years, schools employ tried and tested methods such as synthetic phonics—[Interruption.] I thought that I would get that into my first major contribution to the line-by-line scrutiny.

The impact assessment considered three options: doing nothing, employing a voluntary approach and legislating for a right to time to study. The Institute of Directors says:

“the merits of pursuing a voluntary approach were not adequately explored. No evidence was presented to support the implication that employers are not open to training requests, deny employees  the opportunity to discuss training needs or do not treat requests seriously. Employees already have the ‘right’ to request training — there is no bar to these conversations whatsoever”.

The IOD adds that

“Skills are crucial to the UK's future competitiveness, but so is the maintenance of a low regulatory environment in which business and enterprise can flourish. The introduction of a right to request training is not simply the wrong solution, it adds to the pipeline of impending regulations that will add to the administrative burden on employers. This is undesirable in any case. In the middle of a recession, it is spectacularly unhelpful.”

The Minister’s response to those genuine concerns expressed by the IOD would be helpful.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

I hope that before the hon. Gentleman sits down he will share some of his own views on the IOD’s views, as that will help me to formulate my response.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I certainly will. In fact, I already have—I said that Conservative Members support the right to train. Measures could be introduced to relieve the administrative burden on businesses, while maintaining the right of employees to request time to train.

The IOD points out that many businesses hold regular appraisals with their employees, during which employees’ training needs are discussed. It therefore suggests in its brief to the Committee that

“where employers already offer documented annual appraisals which include discussion of training needs, such provision will constitute grounds for fulfilment of the right to request training obligations...Without such a change those employers that already provide opportunities to discuss training needs will become subject to repeat requests for training: a burden that penalises those organisations that already have existing provision for training discussions.”

Amendment 11, tabled by the Liberal Democrats, has the same source. That amendment states that an employer can refuse an application for time to study made under proposed new section 63D of the 1996 Act if

“a documented discussion of training needs resulting in a decision on whether to extend such provision to the applicant took place within the previous 12 months.”

We agree with that sensible amendment, which is designed to assist companies that have a good and exemplary approach to training and staff appraisal.

Amendment 103 would amend clause 39 in a similar fashion. The CBI has said that it “supports the new right” to request training

“in principle, but it must be implemented in a way that is flexible for business, with the focus on skills development and not time-off.”

It points out that data from the Learning and Skills Council show that business invests about £39 billion a year on training. The CBI’s survey found that 89 per cent. of firms have a training and development plan. It therefore wishes the legislation to be clear that

“where a firm already has good arrangements for discussing training in place (eg. annual performance reviews), training needs can be dealt with through these existing arrangements without recourse to legislation.”

Amendment 103 would therefore insert a preface to proposed new section 63D(1) to ensure that it will apply only if a suitable arrangement for discussing training is not in place. That is a sensible amendment.

We support the objectives of clause 39, which are to ensure that recalcitrant businesses do what they should to encourage their employees to improve their skills, but if we take the CBI figure of £39 billion spent on training and compare it with the calculated benefits of the clause of between £200 million and £400 million—set out in the impact assessment on pages 76 and 77—it is clear that current training expenditure is up to 100 times greater than the anticipated benefit of the new right. That shows that the clause is aimed at a minority of businesses, so it makes sense to try to ease the administrative and regulatory burden of the provision for those companies that already have exemplary training and appraisal processes in place.

Amendment 77 was inspired by the National Deaf Children’s Society. It says that

A significant number of parents regularly contact NDCS with concerns that their child is not receiving his or her entitlement to appropriate education. In many cases, when NDCS investigate, it is found that frontline classroom teachers are trying their best in very difficult circumstances, without the required support and advice to meet the pupil's needs.”

It goes on to say, for example, that

“there has been no guidance published for teachers on how to differentiate the teaching of phonics for deaf children”, even though, a teaching method based on the listening of sounds is clearly inappropriate for many deaf children, particularly those with severe hearing loss.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

Does the hon. Gentleman concede that the point he has just made regarding deaf children shows that synthetic phonics is not always the best method of teaching children to read?

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

It is the best method of teaching children to read. There is no question about that; all the evidence demonstrates it. However, there might be alternative and additional methods for children with specific neurological or aurological conditions. That is not a reason for not applying synthetic phonics in all mainstream primary schools in the country, because the method works for the vast majority of children who do not have neurological or aurological conditions. If we can deal with all those children first, we will have the resources to focus on those with very special needs who require extra help.

The NDCS goes on to say that, according to reports,

“many teachers currently spend one morning over a four year course looking at the needs of all children with SEN—even though Government figures show that one in five of the school population is estimated to have a SEN.”

The NDCS believes that teachers should be entitled to training on how to teach children with special needs. Amendment 77 is a probing amendment that is designed to ensure that the provisions of the clause will apply to teachers who want to improve their skills in teaching children with special needs. If the Minister clarifies that the clause applies to teachers in those circumstances, I will not press the amendment.

I seek the Minister’s clarification regarding another group of professionals. The British Medical Association is concerned about a group of doctors known as staff  and associate specialists—a grade of doctors that used to be called, more simply, non-consultant career grade. Such doctors might use the provisions of the clause to seek further training to help them progress. The BMA’s concern is that an NHS trust might not regard it as beneficial to its operation for junior doctors to improve their skills and progress, because they are too valuable in their current role. However, it would be beneficial to the NHS as a whole if all doctors in that grade could improve their skills.

Proposed new section 63D(4) of the 1996 Act states that the training or study must improve

“the performance of the employer’s business”.

The BMA would like clarification of what the business is for the NHS. Does it apply to the trust in which the doctor works, or to the NHS as a whole? The BMA argues that SAS grade doctors need improved access to training to develop the specialist knowledge and skills that would enable them to offer their potential to the trust and the wider NHS. That is essential to the modernisation of the NHS and would deliver improved patient care. The BMA seeks clarification on the definition of “the employer’s business”. Is the business the trust or the NHS nationally? I would be grateful if the Minister clarified those points.

Photo of Stephen Williams Stephen Williams Shadow Secretary of State (Innovation, Universities and Skills) 3:00 pm, 12th March 2009

We have several groups of amendments to consider under the clause, so I will be brief in discussing this group. We welcome the recognition of the importance of training, particularly by private sector employers, for the good of businesses and their employees.

I share some of the concerns outlined by the hon. Member for Bognor Regis and Littlehampton. Many British businesses have exemplary records in providing training for their employees. My experience from working in the private sector for large companies and consulting firms for 17 years before becoming an MP was that the quality of the training was often second to none. It formed a superb part of my professional and personal development.

None the less, some businesses do not do their best to provide training for their employees. It is those businesses that we should provide with a legislative nudge, but it is important that the nudge does not unduly affect the performance and practices of businesses that already provide such opportunities. We should ease the regulatory burden on them.

Liberal Democrat amendment 11 reinforces the amendments that were tabled by the hon. Member for Bognor Regis and Littlehampton. Businesses should be able to show that they have good appraisal procedures, which include discussion of the training needs of employees. All hon. Members are employers. A key part of the appraisals that I hold with my staff is asking what training they need to enable them to perform their role to a better standard. I am sure that we all undertake such discussions and that they are documented. The purpose of amendment 11 is to make the provision unnecessary if a training discussion has already taken place as part of the employer’s personnel practices, as long as it has been held in the preceding 12 months and was documented.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

I thank and commend the hon. Gentleman for his brevity; I have rather more remarks to make than I would ideally like, but I shall try to get through them.  I shall speak to amendment 11, and given that this is the first time that we have spoken about this big issue in clause 39, I shall make a few general remarks about the clause and the policy as a whole. Before I do so, I shall quickly respond to one or two of the questions from the hon. Member for Bognor Regis and Littlehampton, which may not be covered in my otherwise voluminous remarks.

I was slightly hurt and disappointed that the hon. Gentleman chose to read out all those very intemperate words from the IOD, even though he explicitly, on behalf of his party, does not agree with any of them. He only did it because the IOD was beastly about the policy. The CBI, as he knows, welcomes the scheme—as do the hon. Gentleman and the Liberal Democrats—and the extra opportunities that it brings for learning in the workplace. I will come on to the teacher issue later, but the basic answer is, yes, teachers will certainly be covered by the legislation and will have the right to request the training that they need to teach young people with all manner of learning difficulties and special needs.

On doctors, the answer is that the employer will be the trust. That is a fundamental principle of the legislation. We are defining an employer and an employment relationship in the normal way that they are defined in law. In the circumstances the hon. Gentleman mentioned, the doctors’ employer would be the NHS trust rather than the NHS generally. If there is an issue of the sort the BMA highlighted, we can look at the matter again and talk to colleagues in the Department of Health about them looking at it as well. Altering the legislation to change the definition of “employer” is not the way to address the problem. We decline to do it, but if there is a problem, colleagues elsewhere in government will look at it and I will join them, if necessary.

I shall say a few words about the policy in general. The hon. Gentleman mentioned the £38.6 billion that employers spend on training. In this place, we sometimes forget that employers spend their own money investing in training because they know, more than anybody, how important it is and what a difference it makes to the success of their business. Although I recognise that employers invest a great deal in training, that investment is not universal. Too many adults struggle with low or out of date skills, and about a third of employers do not provide any sort of training for their staff. That is 8 million people a year going without training of any kind. Ultimately, that is what the provisions are intended to address.

Under the provisions, employees will be given a new right to make a statutory application to their employer for study or training. In essence, it is a request to spend time undertaking study or training that will improve their effectiveness at work and the performance of their employer’s business. The new right is closely based on the flexible working model, with which employers are familiar and which the CBI, at our oral evidence session, described as an outstanding success—I am paraphrasing. We have stuck to that model pretty closely, which should make a big difference and make it easier for employers to work with the new arrangements.

Employees will be able to request any training that will make them more effective at work and improve the productivity of the business that employs them.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

What will happen if the employer disagrees with the employee on the effectiveness of that training? What will happen if the employer says, “I do not believe that training will make you more effective in the job you are doing or any of the jobs that we would be able to offer you subsequent to that training.”?

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

The employer and the employee will need to have a meeting and the employer will have to give reasonable grounds why they do not feel the training is appropriate. It will be for the employer to determine the grounds and what is reasonable.

The right will be of particular importance to employees in organisations that do not operate effective systems for considering the learning and development needs of their staff. Mindful of the need to protect business from excessive burdens, the standard position will be that employees will be able to make a statutory request that the employer needs to consider only once in any 12-month period. Employers will need to consider requests seriously, will need to hold a meeting to discuss the application with the employee where appropriate and will need to respond within a set time frame. Who will cover the costs of the training and whether the employee will be paid during the time spent training are matters to be agreed between the employer and the employee, but there will be no obligation on the employer to meet either. There are a number of acceptable business reasons that an employer can use to refuse a request, including where the training would not improve the employee’s effectiveness or improve the performance of the employer’s business. Giving employees a right to a serious conversation with their employer about their skills development will help to encourage and support adults to improve their skills and to rise as far as their talent will take them. The right to request time to train goes with the grain of what the best employers are already doing, as Members have said. It will help to encourage others to follow that example, change the culture and develop the skills we need for the future.

Amendment 103 would have the effect of preventing employees whose employers have in place an annual review system for considering training needs from being able to request time to train. I assure the hon. Member for Bognor Regis and Littlehampton that I understand the aims of the amendment and I recognise that many employers are doing good work, which perhaps the legislation—and we certainly—ought to recognise and appreciate. The amendment is closely linked to amendment 11, tabled by the hon. Member for Bristol, West, which by adding a further reason for refusal to the list of permissible grounds in new section 63F (7) has a similar aim.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

What will be deemed a reasonable amount of time to train? I am sure it is covered in the Bill. Would it be two weeks a year or four weeks a year? What would be deemed the maximum amount of time someone could take off in a year to train and increase their skill levels?

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

The answer is as before. It would be a matter for employers to agree with employees but the employer will have the determining say.

Our approach would not be to exclude employees in a firm operating a good annual review system from the right for time to train, as proposed by amendment 103. The proposal goes against the grain of what we are trying to do, which is to shift the culture and move basic assumptions. The amendment risks making the eligibility criteria too complicated. We think it is important that the right is accorded to every employee who meets the basic eligibility criteria. We do not want to risk putting off any employees who want to exercise that right, particularly those who need it most. In essence, we want to keep the decision over whether to exercise the right with the employee. We want to encourage people to take responsibility for their own training and development and we think employees will be best able to judge whether they need to use the right to access the training they need to get better jobs.

For those reasons, and if we were going down that route, we would prefer the proposal set out by the hon. Member for Bristol, West in amendment 11, which would not deny the employee the right to make the request but would add to the permissible grounds on which an employer could refuse the request, as the employer would already have invested time and effort in considering the employee’s needs and would have acted on meeting them where necessary.

The aim of the policy has always been to ensure that an employee has access to a serious discussion with their employer about their skills and training needs at least once a year. It is therefore right that as a matter of course we take account in some way of the circumstances in which that is happening, but we do not want to commit to introducing such an additional reason on the face of the Bill.

We anticipate that those who had their training needs addressed following some sort of training review are less likely to feel that they need to exercise the right, so we question whether that is a necessary additional safeguard for employers. The Bill as drafted carefully balances the rights of employers on the one hand with those of employees to make the request on the other. It is important to take time to consider whether adding to the permitted grounds for refusal could upset that balance. We did not consult on the basis of the situation set out in amendment 11, and before we made any changes of the sort proposed it would be important to take account of the views of all interested parties.

The proposed amendment raises a range of second order issues about how to define some of the relevant terms to ensure that it does not create potential loopholes for employers to avoid their responsibilities. What, for instance, would a satisfactory appraisal and development system look like? All those are important issues, and I hope that it will be clear from what I have said that we have considered them carefully, and I hope that hon. Gentleman will accept my assurances that we will continue to do so. I also hope that, while these issues remain unresolved, hon. Members will understand that I do not feel comfortable accepting either amendment today. However, there is a power set out in proposed new section 63F(7)(j) that will enable the Secretary of State to specify additional grounds on which requests may be  refused so that we can bring in such a reason through regulation if discussion revealed that there was support for such a measure, and those would be subject to parliamentary scrutiny under the negative resolution procedure. I hope that that explanation is welcomed by hon. Members opposite and that, on the basis of the commitments I have made, they will agree to withdraw the amendment.

Amendment 77 concerns a different issue. It would include in the Bill a specific reference to qualified school teachers with responsibility for teaching children with special educational needs to ensure that they are eligible to make requests for time to train where training would ensure that the needs of the children could be met. The hon. Member for South Holland and The Deepings has told us what underlies the amendment, and I have been happy to assure him that the training needs of such people will be met under the legislation.

I would like to highlight a couple of things quickly before moving on to address how the amendment would affect the clause. The first point worth noting is that all teachers have, as the amendment suggests,

“responsibility for educating children with special educational needs”, particularly now that we have more inclusive learning environments. Specially commissioned materials have been created through the inclusion development programme, which is funded by the Department for Children, Schools and Families, for serving teachers and the assistants who work with them on areas of SEN that we know they find difficult. The first of those materials, on children who experience communication difficulties, was published in 2008, and similar resources on autism are to follow this month.

We are also supporting a series of practical measures for training teachers through the Training and Development Agency for Schools, such as the creation of new study unit material that training providers can use to strengthen those elements in their courses. Funding has been provided to encourage training providers to take up the units, and pilot institutions are working with others in clusters to show how the new resources can be successfully incorporated into existing courses. I can assure the hon. Gentleman that there is already action in hand to address the issue.

Turning to the amendment and clause 39, I can confirm that, under new section 63D, employees who are teachers of children with special educational needs are treated the same way as other employees. There is no need for specific provision to accommodate them. Teachers will be qualified as employees under these provisions and will be able to make requests for time to train, where they are employees as defined in the Employment Rights Act 1996 and met certain other limited conditions. They must have been employed by their employer for the necessary period specified by the Secretary of State. They must not fall within subsection 7 of new section 63D and, on that basis—finally—I hope that the hon. Gentleman will agree to withdraw the amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 3:15 pm, 12th March 2009

I listened very carefully to the words of the Minister. I am sorry that he was offended by the beastly remarks of the IOD. I am happy to cite its views; as a pluralist, it does not worry me that I do not necessarily  agree with every word. I thought that it raised some important and necessary points and the Committee has benefited from the IOD’s views, given that it represents a large swathe of British business.

I am reassured by what the Minister said about teachers, that they will be covered by the provisions in clause 39. That is a welcome assurance, but he underestimates the concerns of the teaching profession about the lack of training for SEN—half a morning in a four year course, though it may well be longer than that—but the NUT has produced its own report about the difficulties faced by the teaching profession when it comes to helping children with special educational needs in the best way possible.

Regarding doctors, could the Minister confirm that the employer will be the trust and not the NHS as a whole? That will be a disappointment to the BMA, but it will be encouraged by his promise that the matter will be raised with the Department of Health. If he were to participate in those discussions, if the BMA were to press the matter, I am sure that it would be happy to hear that.

The Minister said that the Government were mindful of the need to prevent burdens and that is a reason why he ought to be trying to find a way of incorporating these provisions into the legislation. He argues that an amendment would take away the right to request time off in circumstances where there are annual appraisals. Well, yes, we are suggesting taking away the right to request time off to train where employees have the right to request time off to train—it just makes absolute sense. I listened very carefully to what he said and I detected some softening when it came to the wording of the amendment and that he was more inclined to accept, or was more sympathetic to, the wording prepared by the IOD, which has been tabled as amendment 11. If the hon. Member for Bristol, West were to press amendment 11 to a vote, I am sure that I could persuade Conservative members of the Committee to support his amendment.

Photo of Stephen Williams Stephen Williams Shadow Secretary of State (Innovation, Universities and Skills)

If we were to move for a vote soon I would be minded to press, with your indulgence, Mrs. Humble, for a Division to take place specifically on amendment 11.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

I understood that that was an intervention on Mr. Gibb. Does he have anything left to say?

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

No, I am very happy. On the basis of that assurance from the hon. Member for Bristol, West, I beg to ask leave to withdraw amendment 103 and I look forward to support amendment 11 when it comes to the Division.

Amendment, by leave, withdrawn.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I beg to move amendment 104, in clause 39, page 19, line 28, at end insert—

‘(v) the date of the applicant’s last request for training.’.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to discuss amendment 10, in clause 39, page 19, line 35, at end insert—

‘(d) provide the date of the applicant’s last request for training.’.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

The amendment seeks to put into clause 39 an additional detail that an employee would have to include on what is to become known as a “section 63D application”. As currently drafted, the employee has to put the proposed subject matter of study for training on his application: where and when it would take place, which would provide or supervise it, and what qualification it would lead to. The amendment adds a fifth requirement, to provide the date when the employee last made a request for training. That is because clause 39 gives the statutory right, as the Minister has just said, to ask for time off to train or study only once in every 12 months, as set out in new section 63F of the Employment Rights Act 1996. The IOD—I am sorry to cite it again—argued that such an amendment would make the administration less onerous for businesses, and would also stop the frequency of declined requests on the grounds that they fell within 12 months of the last request made by an employee. It agreed that this would be a very simple addition to a section 36D application and an easy piece of information for an employee to include in his application, but it would be hugely beneficial in terms of time saved for employee years.

Amendment 10, in the name of the hon. Member for Bristol, West, is a similar amendment, which we also support. It is important, when introducing and imposing such duties on the business sector, that we, as legislators, do everything that we can to minimise the administrative burden. All Governments claim that they want to do that; the Minister himself said that we want to prevent such measures from becoming a burden. Well, here is a classic opportunity for the Government to help, by simply accepting one or the other of the amendments.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

In line with the position of the hon. Gentleman speaking for the official Opposition, we do not have any preference for either of the amendments: they say exactly the same thing, though in slightly different places in the Bill. They both try to reduce administrative burden, which is important to all of us. It should be done wherever possible, without hampering the provision of training.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

I am getting a little confused regarding the amendments. On the previous amendments, my position was that we did not want to put them on the face of the Bill, but we took the point, which we thought was fair, and we were looking into doing it by regulation. I thought that everybody would be delighted, but apparently, the amendments will still be pressed to a vote.

Regarding amendments 104 and 10, we do not think that they are essential, but we agree that it will be a useful right for employers to have, and we firmly intend to achieve the aim by regulation. While it is not a detail that needs to be on the face of the Bill—it is too fine a level of detail for that—we intend to achieve it by regulation, as how it is done regarding flexible working arrangements. On that basis, I eagerly anticipate that the hon. Member for Bognor Regis and Littlehampton will withdraw his amendment, because we are, on this occasion, certainly—rather than possibly—going to do exactly what he and other hon. Members want, but by regulation.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

The word “certainly” specified by the Minister has convinced me that we have achieved what we set out to do. I look forward to that regulation, and on the basis of the Minister’s assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I beg to move amendment 246, in clause 39, page 20, line 10, leave out ‘thinks’ and insert ‘has reasonable grounds to think’.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to discuss the following: amendment 247, in clause 39, page 20, line 12, leave out ‘thinks’ and insert ‘has reasonable grounds to think’.

Amendment 248, in clause 39, page 20, line 20, leave out paragraph (b) and insert—

‘(b) ‘the burden of additional costs is unreasonable in proportion to the value to be derived from the proposed study or training;’.

Amendment 249, in clause 39, page 20, line 26, leave out ‘insufficiency of work’ and insert ‘inability to provide sufficient work’.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I will, of necessity, be rather brief, as you, Mrs. Humble, will appreciate that a handover is taking place, which was not exactly planned, because of the timing of the debate. I will make my points clearly and concisely.

All four amendments in the group aim to make the tests clearer, and provide them in such a way that a clear judgment can be made, where a challenge can either be answered or accepted. Amendment 246 simply adds

“has reasonable grounds to think”. to the clause, and that seems much clearer than the employer just thinking, because employers can have all sorts of thoughts, which would be difficult to challenge or rebut in any way. Amendment 247 makes that same point. Amendment 248 is particularly important. If a permissible ground for refusal is the burden of additional cost, how much is that? Is it £1, £2, £10, £10,000? We have to have something to tighten that up and add

“unreasonable in proportion to the value to be derived from the proposed study or training.”

I have no doubt that that needs to be tightened up, even if the Minister finds it impossible to accept the amendment today. On amendment 249, it is easy to add weasel words to “insufficiency of work”. It would be much clearer to make the test “inability to provide sufficient work”. I hope that the Minister will regard those comments favourably.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills 3:30 pm, 12th March 2009

In order for these provisions to work properly it needs to be clear that an employer has decided whether a ground applies. Including the term “reasonable grounds to think” introduces a level of uncertainty and creates a more complex test. The grounds on which employers may refuse requests are quite extensive and it should be possible for employers to reach a considered view as to whether a ground applies in a particular case, as they already do for flexible working requests. In practice, when considering declining requests  employers will have to consider which of the permissible grounds for refusal applies and why this ground or grounds apply. They will then need to explain this to their employee when they notify them of the decision. The requirement for the notification will be set out in regulations.

The flexible working provisions on which this was based work in exactly the same way and they work very well. They also contain a provision that the employer may refuse an application only if he considers that one or more of the prescribed grounds applies. There is no requirement for the employer to have “reasonable grounds”. However, if the employer does not have reasonable grounds to think that a particular ground of refusal applies, it is assumed that he will not be able to give the necessary explanation in the decision notice and it is open to the employer to challenge the decision on the basis that it is based on incorrect facts.

Amendments 248 and 249 both propose changes to the reasons for refusal in subsection 7 of new section 63F. I sympathise with the intention behind amendment 248, but I assure the hon. Lady that it is not necessary to achieve its aim and it would be too restrictive. Accepting the amendment would limit the use of the additional cost reason to an unhelpful extent. It would mean that an employer could cite this reason only where they were able to show that the additional costs were greater than any value to be gained from the proposed study or training. We also think that the provisions as they stand already cater for this.

If an employer carries out a cost-benefit analysis and concludes that the costs outweigh the benefits, this seems likely to mean that overall the proposed study or training will not lead to an improvement in the performance of the employer’s business. In which circumstance we think that an employer could pretty certainly use the ground in section 63F(7)(a), which states that the proposed study or training to which the application relates would not improve the performance of the employer’s business. Equally, the employer could conclude that were they to meet the costs in circumstances where no overall benefit was derived, it could have a detrimental impact on the performance of the business. In such a case the ground in subsection (7)(g), “detrimental impact on performance”, could be cited. Therefore, we think there is ample coverage already to address to scope of these amendments.

Amendment 249 would have the effect of redefining one of the permissible grounds for refusal set out in section 63F(7). Rather than specifying insufficiency of work, it would refer to inability to provide work during the periods that the employee proposes to work. While I understand what hon. Members might mean with this amendment, we do not want there to be any suggestion that an employer would have to seek to provide alternative work for the employee at relevant times such as where the employee suggested a change to their current working arrangements to accommodate the training. We want the sufficiency of work during the period proposed to be considered in the light of the employer’s current business situation.

Of course there is a need for flexibility and there can—and probably will be—discussions between an employee and employer about how to accommodate the training request which might result in some rearrangement by an employer.

The employer does not have to rely on that reason for refusal if they do not want to, but we think that the available reason for refusal is better looked at from the perspective of insufficiency of work rather than the employer’s inability to provide it. That will be a simpler reason for employers to apply.

I hope that on that basis hon. Members will feel able to withdraw their amendments.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I thank the Minister for his courteous reply. I am slightly disappointed that we did not make further progress on amendment 248, but at this time of the afternoon, when we want to complete at least this section, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 11, in clause 39, page 20, line 30, at end insert—

‘(k) a documented discussion of training needs resulting in a decision on whether to extend such provision to the applicant took place within the previous 12 months.’. —(Annette Brooke.)

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 8.

Division number 8 Nimrod Review — Statement — Clause 39

Aye: 5 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I beg to move amendment 259, in clause 39, page 20, line 37, at end insert

‘except where that employee is employed by an employer who employs less than 20 employees;’.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to take Government amendments 183 and 184.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

According to my information, the amendment refers to line 27, but it should apply to line 37. The suggestion for the amendment has come from the Federation of Small Businesses. It urges the introduction of an exemption for businesses with fewer than 20 employees so that they can continue to hold one-to-one informal meetings, without the need for union representation.

The figure of 20 is based on the number of members that a union must have to be recognised by a business. If we translate this to even smaller businesses, with perhaps three or four employees, it puts the measure in context as to whether it would be practical. The Federation of Small Businesses makes the point that the best way in which to engage small businesses with the policy is to keep it informal, making it easy to identify necessary training.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

We believe that the amendment is a sensible measure to support small businesses, provided that it is put into the right place in the Bill. According to the impact assessment, 1,019,295 micro-businesses that employ fewer than 10 employees. That represents 83 per cent. of firms, but 20 per cent. of employees. Taking that number up to 20 employees, as proposed under the amendment, the proportion would increase to somewhere between 20 and 37 per cent. I guess that it would increase by about a quarter.

The Government might argue that the amendment would deny this important training right to too many people—to one quarter of employees; but, we would argue that to lose one employee in a firm of just 10 or 20 people for a period of training could be disastrous for that company. Then, no doubt, the Minister would argue that new section 63F(7) provides grounds for refusal of a request for training in those circumstances, but there is an administrative burden in dealing with the request. The manager of the firm, presented with an official form that purported to give an employee the right to time off, would then be required to look up the provision, read the legislation and determine that he could refuse the request on the grounds of new section 63F(7)(c),

“detrimental effect on ability to meet customer demand”, which he might then have to prove. Since most people who run small businesses are not lawyers, the manager would almost certainly have to take legal advice to come to that view. It would be better, therefore, to remove small businesses from the provisions all together.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

I am slightly confused now about which part of the Bill the amendment seeks to amend. I previously took the amendment to be related to the part where it would actually be inserted, rather than the part where the hon. Member for Mid-Dorset and North Poole subsequently told us she intended it to be inserted. Where it would have been inserted, it would have—

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

Order. For the Minister’s benefit, I read out that the amendment is proposed at clause 39, page 20, line 37. We are debating that part of the Bill.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

In which case, we are talking not about whether we exempt small firms from the provisions all together, but about whether we exempt small firms merely from the part of the Bill that deals with the opportunity to take a colleague along to the meeting at which the right to train is requested. On that basis, although I shall go into a little bit more detail, I shall take a little more convincing if hon. Members seriously believe that the Bill requires an exemption to the provision for people to take a friend to a meeting.

Evidence shows that, of employees without a level 2 qualification, about one quarter are in a workplace with 10 or fewer people. It therefore follows that employees in smaller businesses are more likely to be in need of support when discussing with their employer a request for time to train. We also want that right to be as simple as possible for employers to operate, so setting up different rules for different groups of business would add complexity and break the close alignment that we seek with flexible working, which has been recognised as a factor in making the new right easier for employers to work with.

We therefore see no reason to restrict who is given the right to have a companion go with them to meetings about new section 63D applications. I also draw the hon. Gentleman’s attention to the way in which the provision has been defined in the indicative regulations that were provided to the Committee. They state that a companion must be, first, someone selected by the employee, and, secondly, a worker employed by the same employer as the employee. That is quite straightforward and reflects our policy intention.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I hope that the Minister, before he concludes his remarks, will speak to his own, Government amendments.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

I shall and, indeed, was just about to seek permission to speak to Government amendments 183 and 184.

Amendment 183 relates to the scope of the regulation-making power in new section 63F(4) and how it can be applied to people who act as companions. The amendment would make a technical change to new section 63G(1) to make it clear that the regulation-making power at new section 63F(4) was wide enough to enable regulations to be made about the rights of those who act or seek to act as companions not to suffer detriment, and about unfair dismissal. It is clearly important that those people receive the proper protection when they act as a companion under the provisions.

Amendment 184 is a minor technical amendment that would simply ensure that new section 104E in the Employment Rights Act 1996 was consistent with the other provisions that clause 39 inserts. The amendment would correct a minor error in new section 104E, replacing “learning support” with “section 63D”, the term that is used elsewhere in the clause. On that basis, I urge hon. Members to withdraw their support for the amendment.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education) 3:45 pm, 12th March 2009

I thank the Minister for his answer. I am sure that my colleagues will peruse it carefully and consider whether they should pursue the amendment further at a later stage of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 183, in clause 39, page 20, line 43, leave out ‘and (b)’ and insert ‘to (c)’.—(Mr. Simon.)

This amendment is about those who accompany, or seek to accompany, employees to meetings about section 63D applications. It ensures the regulation-making power at the new section 63F(4) (inserted into the Employment Rights Act 1996) includes power to make provision about companions’ right not to suffer detriment and about unfair dismissal.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I beg to move amendment 12, in clause 39, page 21, line 12, at end insert—

‘(d) fails to attend more than two consecutive periods of study or training.’.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to discuss amendment 13, in clause 39, page 21, line 14, at end insert—

‘(4) Failure to start, attend or complete the agreed study or training shall constitute permissible grounds for an employer to remove the awarded time off.’.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

Both amendments seek to allow employers to act if the employee is not using the time off to attend the course, which is perfectly reasonable. I am slightly concerned about the many cases where there will be good reason for not attending a course, such as being rushed into hospital, so would prefer some softening on the edges of the amendments, which both seek to do the same thing.

I taught in a college of further education for many years, so I am aware that students can turn up for the first session and then not again for a long time. It is important that we give employers the backing to support training; therefore, some provision needs to be made, but possibly it should be a little more humane than what is in the amendments.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Briefly, these IOD-inspired amendments were tabled to tackle the very real issue of what happens if the employee, having been granted time off to study, simply fails to attend courses. They impose a duty on the employee to inform their employer that they are not attending the course. That seems entirely reasonable, and we support the direction of travel taken by the two amendments.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

First, I was not at all surprised to learn that the hon. Lady spent a long time in a further education college. She revealed herself in the past few minutes to have picked up a set of competencies, as they are now called, which show her to be practical, resourceful and resilient under testing circumstances—skills which I do not doubt she honed in the FE sector.

The hon. Member for Bognor Regis and Littlehampton tells us that people need to have their training attendance ensured and enforced, and they certainly do. Our firm belief is that those provisions are in place in the Bill, and that the amendments are unnecessary.

Photo of Bill Wiggin Bill Wiggin Opposition Whip (Commons)

Is it the Minister’s understanding, therefore, that if an employee did not turn up at his training and did not say anything about it at all, that would be grounds for a gross misconduct charge or lead to dismissal?

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

I cannot say whether that would lead to dismissal. Would it be a disciplinary issue? Yes, and I shall explain why.

The hon. Member for Leominster will be fascinated to learn that proposed new section 63H, which is to be inserted in the Employment Rights Act 1996, states:

“The employee must inform the employer if the employee...fails to start” or

“fails to complete the agreed study or training...undertakes, or proposes to undertake, study or training that differs from the agreed study or training in any respect”.

That includes a requirement to inform the employer of any change as to when the agreed study or training is to take place.

The effect of the section is wide-ranging. It will capture instances of failing to attend more than two consecutive periods of study or training, as proposed by the amendment, if it had been agreed that the employee should attend those periods. It is better to include this broader requirement than to set what might be arbitrary minimum requirements for attendance, which might not in any event apply to all training requests that are granted. Many will not involve more than one period of study. The measure will give employers the assurance and oversight that they need to monitor whether employees are fulfilling their responsibilities.

That brings us to the nub of the issue and amendment 13. If employees are required to report the fact that they failed to start or to complete the agreed study or training or that they undertook a different course of study or training, why is there no corresponding power for employers to withdraw support if those events occur? In our view, legislating for the circumstances in which an employer could withdraw their support, having previously agreed to a request, would make the provisions complicated and difficult to operate. It is not done like that in flexible working, which works very well. If we gave employers a right to withdraw support in the Bill, we would have to give employees a right to appeal in the Bill. In the interests of flexibility, it is best to allow the employer and employee to reach an agreement between themselves on the circumstances in which the employee should no longer be able to continue with the agreed study or training. That will enable the individual circumstances of the employer and the nature of what has been requested and of the absence to be taken into account.

In certain circumstances, the employer’s normal disciplinary procedures may apply if the employee fails to attend the agreed training. In other circumstances, in which the employee’s request was only for a short course or on-the-job training, the employer’s withdrawal  of support would be unlikely to be so significant. The employer may consider taking into account the failure of an employee to attend a course when dealing with future requests. We plan to issue guidance to employers and employees to assist with this aspect of training. We shall consult stakeholders and business representative bodies on the guidance before it is issued.

There is one other minor point, which I hope hon. Members will not mind me mentioning here. It is not accurate—hon. Members generally have not done this today—to refer to time off when considering training under these provisions. This is a right to request study and training. In many cases, that will not be time off. It is important to bear it in mind that time associated with the new right will be spent training for the good of the business. On the basis of all those comments, I hope that the hon. Member for Mid-Dorset and North Poole will withdraw the amendment.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I thank the Minister for his detailed reply and his assurance that there will be guidance with full consultation of stakeholders. That will give the various employers’ associations adequate opportunity to comment on the issues. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 184, in clause 39, page 23, line 6, leave out ‘learning support’ and insert ‘section 63D’.—(Mr. Simon.)

This amendment makes new section 104E (which is inserted into the Employment Rights Act 1996) consistent with other provisions inserted by clause 39, which refer to a ‘section 63D application’.

Clause 39, as amended, ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.— (Ms Butler.)

Adjourned till Tuesday 17 March at half-past Ten o’clock.