Session: 2014/2015

Date: 08 October 2014

Reference: NIA 198/11-15

ISBN: 978-0-339-60541-1

Mandate Number: Mandate 2011/15 Third Report

work-and-families-bill-report.pdf (16.59 mb)

Download the full report here.

Executive Summary

1. The purpose of the Bill is to provide a legislative framework enabling Northern Ireland leave and pay entitlements to continue to match those available to working parents in Great Britain. The Bill also facilitates extension of the right to request flexible working to all employees with an appropriate length of service.

2. The Bill sets out a legislative framework allowing for the voluntary sharing of leave and pay entitlement between parents following the birth or adoption of a child (shared parental leave and pay). It goes on to make consequential adjustments to other rights for working parents to ensure that they appropriately interface with the new provisions. It also abolishes the right to additional paternity leave and pay, which the new system replaces and builds upon.

3. Provision is made allowing foster parents who are a child’s intended adoptive parents to access adoption pay and leave, and intended parents in surrogacy arrangements to avail of paternity and adoption leave and pay.

4. The Bill provides for statutory adoption pay to be paid at 90% of earnings for the first six weeks. It also facilitates paid time off work for primary adopters to attend up to five introductory meetings before a child is placed with them for adoption; and unpaid time off for secondary adopters to attend two such meetings. A similar right to take unpaid time off work is provided for the partners of new mothers to attend ante-natal appointments.

5. The Bill facilitates extension of the current right to request flexible working to all employees having an appropriate length of service with their employer.

6. Finally, the Bill introduces a minor technical amendment in support of a programme, developed as part of the Department’s Employment Law Review, to consolidate working time regulations.

7. As set out by the Department for Employment and Learning the Bill’s provisions will:

i. create a new entitlement, with appropriate regulation making powers, for employees to be absent from work on “shared parental leave” for the purposes of caring for a newly born or adopted child;

ii. permit qualifying birth parents, adopters and intended parents in surrogacy arrangements to qualify for “shared parental pay”;

iii. make provision for intended parents in surrogacy arrangements to avail of paternity and adoption leave and pay;

iv. set in place powers allowing notice periods for paternity leave and pay to be equalised;

v. set in place powers which, following a future review and subject to Assembly confirmation of relevant regulations, would allow statutory paternity rights to be made more generous;

vi. provide for statutory adoption pay to be paid at 90% of earnings for the first six weeks;

vii. remove the current entitlements to additional paternity leave and pay (given that these entitlements are being replaced by shared parental entitlements);

viii. create a new right for employees and certain agency workers who have a qualifying relationship with a pregnant woman or her expected child to attend up to two ante-natal appointments during the pregnancy;

ix. create a comparable right for secondary adopters;

x. create a new right for primary adopters to take paid leave to attend up to five introductory meetings before a child is placed with them for adoption;

xi. remove the current requirement that an employee must have parental or caring responsibility in order to make a flexible working request;

xii. the Bill also contains provision to allow foster parents who are a child’s intended adoptive parents to access adoption pay and leave arrangements, including shared parental leave.

8. The Committee formally considered the Work and Families Bill on 1 October 2014 and was content with the Bill as drafted.

9. The Committee however considered a range of issues outside the Clauses of the Bill which were raised by key stakeholders that are relevant to the Regulations and Guidance which will flow from the Bill.

The Two week negotiation period may not be long enough

10. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Employees making and then withdrawing a request for shared leave

11. The Committee accepts the Department’s position on this issue.

The process for requesting leave

12. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

The cut-off point for parents taking shared parental leave should be 52 weeks from the start of maternity leave rather than from the birth of the child

13. The Committee accepts the Department’s position on this issue.

Right to return to the same or a similar job when returning from periods of leave totalling up to 26 weeks

14. The Committee accepts the Department’s position on this issue.

Keeping in Touch days

15. The Committee accepts the Department’s position on this issue.

Day one right to shared parental leave and pay

16. The Committee accepts the Department’s position on this issue.

Arranging cover for employees on shared parental leave

17. The Committee accepts the Department’s position on this issue.

Allowing parents to take leave in one week blocks

18. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Amount of statutory pay available and uptake of the right to shared parental leave is likely to be low

19. The Committee accepts the Department’s position on this issue but wishes to receive further information on how and when the Department will review up-take of shared parental leave including the Terms of Reference.

Flexible working

20. The Committee accepts the Department’s position on this issue.

New right to begin for parents of children expected to be born or adopted in April 2015

21. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

User Friendly processes

22. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Arrangements that will be in place for recouping overpayments and allowing employers to communicate to verify information

23. The Committee accepts the Department’s position on this issue.

Fear of being open to sex discrimination

24. The Committee accepts the Department’s position on this issue.

Guidance

25. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Alignment with legislation in Great Britain

26. The Committee accepts the Department’s position on this issue.

Another individual as a person with whom parental leave could be shared

27. The Committee accepts the Department’s position on this issue.

Paid leave for partners to attend antenatal appointments

28. The Committee accepts the Department’s position on this issue.

Kinship carers

29. The Committee accepts the Department’s position on this issue.

30. The Committee considered the Report on its Scrutiny of the Bill on 8 October 2014 and ordered for the Report to be printed.

Introduction

31. The Work and Families Bill was referred to the Committee in accordance with Standing Order 33 on completion of the Second Stage of the Bill on 12 May 2014.

32. The Minister for Employment and Learning made the following statement under section 9 of the Northern Ireland Act 1998:

The Bill will allow for a sharing of leave and pay between working parents that better reflects the needs of modern families. It will also help businesses to retain and progress talented individuals, particularly women, and enhance the flexibility of the Northern Ireland labour market.

33. The Bill sets out a legislative framework allowing for the voluntary sharing of leave and pay entitlement between parents following the birth or adoption of a child (shared parental leave and pay). It goes on to make consequential adjustments to other rights for working parents to ensure that they appropriately interface with the new provisions. It also abolishes the right to additional paternity leave and pay, which the new system replaces and builds upon.

34. During the period covered by this report, the Committee considered the Bill and related issues at seven meetings. The relevant extracts from the Minutes of Proceedings for these meetings are included at Appendix 1.

35. At its meeting on 7 May 2014 the Committee agreed a motion to extend the Committee Stage of the Bill to 30 November 2014. The motion to extend was supported by the Assembly on 12 June 2014.

36. The Committee had before it the Work and Families Bill and the Explanatory and Financial Memorandum that accompanied the Bill. On referral of the Bill, the Committee wrote on 12 may 2014 to key stakeholders and inserted public notices in the Belfast Telegraph, Irish News, and News Letter seeking written evidence on the Bill by 23 June 2014.

37. A total of seven organisations responded to the request for written evidence and a copy of the submissions received by the Committee are included at Appendix 3.

Consideration of the Bill

38. The Work and Families Bill has five parts, 24 Clauses and two schedules. It consists of:

Part 1 - Defined Expressions: This provides definitions of terms and expressions used throughout the Bill;

Part 2 - Shared rights to leave and pay: Part 2 consists of 13 Clauses covering three broad areas:

  • Shared parental leave;
  • Statutory shared parental pay; and
  • Other statutory rights.

Part 3 - Time off work: Ante-natal care, adoption appointments: This consists of four Clauses including rights to attend ante-natal appointments and a right not to be subjected to detriment for agency workers;

Part 4 - Other employment rights, miscellaneous: This has two Clauses on flexible working and the procedure for regulations as to a prescribed amount of annual leave; and

Part 5 - General provisions: This contains four Clauses including repeals and commencement dates.

39. The Committee first considered the proposals in the Bill on 1 May 2013 when Departmental officials set out the policy context and its plan to consult on the shared parental leave proposals. The officials advised the Committee that during the Assembly debate on 16 April 2013, on the Parental Leave (EU Directive) (Maternity and Parental Leave) Regulations (Northern Ireland) 2013, which had been supported by the Committee and increased the entitlement to unpaid parental leave from 13 weeks to 18 weeks, the Minister noted that responses to the public consultation on implementing the Directive in Northern Ireland had indicated a desire for consideration of wider changes to rights for working parents.

40. Also during this briefing on 1 May 2013 the Departmental officials advised that on 4 February 2013, the UK Government had introduced a Children and Families Bill for Great Britain with proposals on a wide range of measures including a framework for significant changes to statutory paid and unpaid leave entitlements associated with the birth or adoption of a child and an extension of the right to request flexible working to cover all employees (rather than, as at present, parents and carers).

41. The Department therefore advised that it would consult on introducing the GB legislation in Northern Ireland.

42. The Committee sought clarification at that time on the Minister’s consideration of adopting the GB legislation by way of a Legislative Consent Motion and was informed that given that the Children and Families Bill for Great Britain was at report stage it was unlikely that the Department’s consultation would be finished in time to allow for a Legislative Consent Motion and that a Northern Ireland process would allow for more flexibility in timing and proposals.

43. The Committee also questioned officials on negotiations with other relevant Departments to ensure that there would be no resistance from the Executive and was assured that the relevant Departments of Social Development, the Department of Health, Social Services and Public Safety and the Department of Enterprise, Trade and Investment had been involved from an early stage and were content with the proposals.

44. The officials were asked to explain what the range of opinions was that had been put forward. The officials outlined the concerns voiced by employers in the consultation on flexible working proposals regarding extending the right to all employees and that this could have a negative impact in two ways. Firstly that employers feared that they would face a large number of requests that would take up a lot of administrative processing time and secondly the Equality Impact Assessment (EQIA) questioned whether extending the right to flexible working to all employees would dilute its effectiveness for existing categories of people who are able to request it, such as parents and carers of adults. The officials pointed out that these issues were to be addressed in the consultation.

45. The Committee also asked the Department to explain why no specific provision was being included for parents whose child has a disability and were advised by the Department that it had not been part of the shared parental leave consultation. However it does factor into flexible working and the right to request flexible working is available to parents with children up to the age of 18 who have a disability and to carers of adults, which will often mean people with a disability.

46. The Committee also sought assurance that the Bill would not lead to significant additional burdens on employers and more red tape, especially given the high proportion of Small and Medium Enterprises (SMEs) in Northern Ireland and the reasons for treating large companies and SMEs the same in the legislation. The Committee also explored how the proposals could impact on employers in practice. The Committee was content that these issues were to be explored in the consultation.

47. On 25 September 2013 the Departmental officials returned to the Committee to brief on the responses received to the consultation and the Department’s proposals going forward. The Committee noted that of the 32 responses of stakeholders to the consultation, that the consensus was that respondents were positively disposed towards the main proposals and that the legislation should correspond to those in Great Britain. The Committee once again asked questions about any disproportionate impact on SMEs and was assured by the officials that the Department would seek to put in place arrangements that minimise the administrative burden for all employers and working parents.

48. The Committee received a further briefing from Departmental officials on the principles of the Bill on 26 March 2014. The Committee asked for clarification on the impact of the Bill on flexible working for carers and parents and the officials explained that there was no change but that the Bill will extend the right to request flexible working to all employees who have the necessary period of service (which is currently 26 weeks).

49. The Committee also examined the process to be followed for requesting flexible working and the statutory and non-statutory aspects of this.

50. Another issue raised by the Committee was how the legislation sat with the Department of Enterprise, Trade and Investment commitment to reduce red tape and get rid of redundant regulations and the officials explained that the inclusion in the Bill of the consolidation of working time regulations would assist in this aim.

51. The Committee received the Bill on 12 May 2014 and went out to consultation to 79 organisations on the same day with a closing date of 23 June 2014.

52. The Committee considered written evidence received from seven stakeholders, and took oral evidence from Departmental officials and the Engineering Employers Federation Northern Ireland.

Written responses

53. One of the written responses was from the Minister for Health, Social Services and Public Safety, advising that he was content with the provisions in the Bill for fostering and adoption and pay and leave conditions which impact on the remit of his Department. The Minister indicated that he had agreed the relevant Clauses and that his officials would continue to provide assistance to the Department in the preparation of secondary legislation.

54. In addition, the Committee for Social Development provided a nil response.

55. The Citizens Advice Bureau advised that it supports the Clauses of the Bill and feels that it takes into consideration the points raised in its original consultation submission in August 2013. The Citizens Advice Bureau also states that the implementation of the Bill will allow working family’s greater flexibility, control and choice over care arrangements for children during the early stages of their lives.

56. The Labour Relations Agency made the general point that any amendment to existing employment legislation or new employment rights deriving from the proposals should be clear, concise and unambiguous if satellite legislation is to be avoided. The Labour Relations Agency also made the point that the Bill needed to be mindful of challenges in the Northern Ireland micro firm economy in understanding and complying with contemporary employment law.

57. The remaining three responses from the Engineering Employers Federation Northern Ireland (EEF NI), the Confederation of British Industries Northern Ireland (CBI) and the Irish Congress of Trade Unions Northern Ireland Committee (ICTU) made more substantial responses. However they drew heavily on their responses to the Department’s consultation on general proposals rather than on the details contained in the Bill (appendix 3). As a result a number of their comments are relating to issue, the details of which are not contained in the Bill but will be outlined in secondary legislation which will be established only if the Bill is passed. As the EEF NI points out:

Throughout the Bill it refers to the fact the “The Department may make Regulations…” and “Regulations are to provide for..”. Consequently, it is clear that the Regulations, and not the Bill, will provide the detail of how these rights will operate in practice.

58. The comments on the Bill are therefore extremely limited given that it simply sets the foundation for the main rights which the Department has agreed will be taken forward.

59. The EEF NI, whilst broadly supportive of the main provisions, voices the concern of its members about how these rights will operate in practice and how the Department will balance the rights against the needs of employers who need to be able to continue to operate their business effectively.

60. These sentiments are shared by the CBI which prefaces its comments by stating that:

Our comments below reflect mainly on the administrative and practical implications of the Bill and how these can be managed in the best interests of employers and employees.

61. The CBI also gives qualified support for the Bill. It supports the reform of the existing system but warns that for reform to have the confidence and backing of the business community it is imperative that, in a time of continuing economic challenge where the burden of red tape must continue to be reduced, the system is simple so as to be truly effective. It states that too much process, little notice and inflexible demands on companies could undermine the proposals in the Bill.

62. ICTU points out that while it supported the Department’s proposals outlined in its consultation it is disappointed that the new Bill does not address many of its original concerns. ICTU point out that there are a number weaknesses in the shared parental leave and pay scheme and believes that it will not lead to a substantial change in the number of fathers/partners taking time off work to care for children because it lacks sufficient incentives.

63. ICTU argues that international evidence shows that fathers are most likely to take leave that is clearly available solely to them on the basis that if they do not use it they lose it and that shared entitlements are mostly used by mothers. ICTU feels that the absence of reserved leave for fathers means they are less likely to apply.

64. Among the general comments outlined by the respondents there are a number of more specific issues addressed. Although the Clauses of the Bill were not referred to, the issues raised were attributed to the relevant parts of the Bill for consideration by the Committee.

65. The respondents did not often refer to the specific Clauses and much of the comments made are not set out in this legislation but will be developed in the subsequent regulations if the Bill is passed.

Examiner of Statutory Rules

66. The Examiner of Statutory Rules has reported on the Bill with respect to the subsequent regulations and noted that he was content.

There are powers to make subordinate legislation throughout the Bill, mostly by way of amendments to the Employment Rights (Northern Ireland) Order 1996 and the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The Department has explained that the more significant regulations are subject to confirmatory procedure, while more minor regulations are subject to negative resolution. This seems to be appropriate, especially when viewed against the structure of the legislation being amended and also against the 2014 Act.

There are also several places where the draft affirmative procedure has been used (subordinate legislation cannot be made until a draft of it has been laid before, and approved by a resolution of, the Assembly), and these also seem to be an appropriate level of scrutiny.

67. The Committee considered the Report on its Scrutiny of the Bill on 8 October 2014 and ordered for the Report to be printed.

Clause by Clause Consideration of the Bill

68. The Committee deliberated on the Clauses of the Bill and on the issues raised by stakeholders on 24 September 2014 and at its meeting on 1 October 2014 the Committee formally considered the Clauses of the Bill.

Part 1 Defined expressions in this Act

Clause 1. Defined expressions in this Act

69. Clause 1 defines the two main expressions in this Act; “the Employment Rights Order” and “the Contributions and Benefits Act”.

70. The Committee agreed that it was content with Clause 1 as drafted.

Part 2 Shared Rights to Leave and Pay

71. Part 2 consists of 13 Clauses covering; Shared parental leave; Statutory shared parental pay; and other statutory rights. This is the section of the Bill which was most commented on in the submissions.

Clause 2. Shared parental leave

72. Clause 2 creates a new entitlement for employees to be absent from work on shared parental leave for the purposes of caring for a child. This means that qualifying working parents will now be able to share leave remaining when a woman ends her maternity leave or a person ends his or her adoption leave. The total amount of leave available to both parents will not be more than is available in total at present; however, there will be greater flexibility, where parents choose to use it, in how leave is shared.

73. The Committee agreed that it was content with Clause 2 as drafted.

Clause 3: Exclusion or curtailment of other statutory rights to leave

74. Clause 3 deals with bringing ordinary maternity or adoption leave to an end early. This is necessary before parents can gain access to shared parental leave. Shared parental leave is entirely optional and it will be for individuals to decide whether they wish to do this.

75. The Committee agreed that it was content with Clause 3 as drafted.

Clause 4: Abolition of additional paternity leave

76. Clause 4 repeals the statutory right to additional paternity leave, which is no longer required given the introduction of the more flexible system of shared parental leave.

77. The Committee agreed that it was content with Clause 4 as drafted.

Clause 5: Statutory shared parental pay

78. Clause 5 establishes a new entitlement to shared parental pay for qualifying birth parents, adopters and intended parents in surrogacy arrangements. This means that qualifying working parents will now be able to share statutory pay entitlement remaining when a woman ends her statutory maternity pay or maternity allowance or a person ends his or her statutory adoption pay entitlement. The total amount of statutory pay available to both parents will not be more than is available in total at present; however, there will be greater flexibility, where parents choose to use it, in how it is shared.

79. The Committee agreed that it was content with Clause 5 as drafted.

Clause 6. Exclusion or curtailment of other statutory rights to pay

80. Clause 6 allows for the reduction of a person’s maternity allowance period, maternity pay period or adoption pay period to allow the individual to access the new system of shared parental leave and pay. As with shared parental leave, shared parental pay is only available when these individual periods have ended. It is for the individual concerned to decide whether and when to end a statutory pay period early in order to allow for the sharing of statutory pay entitlement.

81. The Committee agreed that it was content with Clause 6 as drafted.

Clause 7. Abolition of additional paternity pay

82. Clause 7 repeals the right to additional statutory paternity pay. This right is no longer required as it is being replaced with the more flexible statutory shared parental pay arrangements.

83. The Committee agreed that it was content with Clause 7 as drafted.

Clause 8. Other statutory rights to leave of prospective adopters with whom looked after children are placed

84. Clause 8 allows existing paternity and adoption leave rights to include fostering for adoption arrangements i.e. arrangements where a child is placed with approved foster parents who are also approved prospective adopters, with a view to the child being adopted.

85. The Committee agreed that it was content with Clause 8 as drafted.

Clause 9. Other statutory rights to pay of prospective adopters with whom lookedafter children are placed

86. Clause 9 has the same purpose, in respect of statutory paternity and adoption pay.

87. The Committee agreed that it was content with Clause 9 as drafted.

Clause 10. Other statutory rights to leave of applicants for parental orders

88. Clause 10 makes provision for intended parents in surrogacy arrangements, who are entitled and intend to make an application for a parental order, to be entitled to paternity leave and to adoption leave in respect of the child who is the subject of the order. Surrogate mothers are not entitled to maternity leave.

89. The Committee agreed that it was content with Clause 10 as drafted.

Clause 11. Other statutory rights to pay of applicants for parental orders

90. Clause 11 makes similar provision in respect of statutory paternity pay and statutory adoption pay in respect of the child who is the subject of the order.

91. The Committee agreed that it was content with Clause 11 as drafted.

Clause 12. Statutory paternity pay: notice requirement and period of payment

92. Clause 12 allows the Department to set the period of notice a person must give in order to take statutory paternity pay. The Department is also empowered to set the number of weeks of statutory paternity pay in regulations subject to a minimum of two weeks. Regulations may further be made to enable paternity pay to be taken in non-consecutive periods of not less than one week.

93. This Clause allows for potential future changes to the way in which statutory paternity pay is provided. This would allow a policy decision to be taken to reserve a specific period of paid leave for fathers, as happens in some international examples.

94. There are no plans at present to alter paternity leave and pay but any such change would be subject to Assembly scrutiny.

95. The Committee agreed that it was content with Clause 12 as drafted.

Clause 13. Rate of statutory adoption pay

96. Clause 13 provides for statutory adoption pay to be paid at an earnings related level (90% of a person’s normal weekly earnings) for the first six weeks and a lower prescribed weekly rate for the remaining 33 weeks. The objective is to align arrangements for statutory adoption pay more closely with those for statutory maternity pay, supporting the important role that adoptive parents play in society.

97. The Committee agreed that it was content with Clause 13 as drafted.

Clause 14. Further amendments

98. Clause 14 gives effect to Schedule 1, which contains minor and consequential amendments.

99. The Committee agreed that it was content with Clause 14 as drafted.

Part 3 Time Off Work: Ante-Natal Care, Adoption Appointments

Clause 15. Time off work to accompany to ante-natal appointments

100. Clause 15 gives employees and qualifying agency workers a ‘day one’ right to attend up to two antenatal appointments, on an unpaid basis. The right will be available to an individual husband, civil partner or partner of a pregnant woman and to intended parents in surrogacy cases.

101. The Committee agreed that it was content with Clause 15 as drafted.

Clause 16. Time off work for ante-natal care: increased amount of award

102. Clause 16 increases the amount of compensation that an industrial tribunal will order where it finds that a pregnant employee or agency worker has unreasonably been refused time off work to attend an antenatal appointment.

103. The Committee agreed that it was content with Clause 16 as drafted.

Clause 17. Time off work to attend adoption appointments

104. Clause 17 allows primary adopters paid time off work to attend up to five pre-adoption appointments and secondary adopters unpaid time off to attend up to two such appointments. These appointments would be for the purposes of getting to know and bond with the looked after child. Meeting the child, and professionals involved in the care of the child, should increase the chances of the adoption being successful.

105. The Committee agreed that it was content with Clause 17 as drafted.

Clause 18. Right not to be subjected to detriment: agency workers

106. Clause 18 provides that agency workers may not be subjected to detriment as a result of exercising the right to take time off work for antenatal appointments or pre-adoption appointments.

107. The Committee agreed that it was content with Clause 18 as drafted.

Part 4 Other Employment Rights: Miscellaneous

Clause 19. Flexible working: removal of requirement to be a carer

108. Clause 19 extends the right to request flexible working to all employees who have the necessary period of service with their employer (currently 26 weeks). Currently, the right is restricted parents and carers. The nature of the right will not change; employers will continue to have the right to turn down a request on business grounds.

109. The Committee agreed that it was content with Clause 19 as drafted.

Clause 20. Procedure for regulations as to prescribed amount of annual leave

110. Clause 20 makes a technical amendment to Article 15 of the Work and Families (Northern Ireland) Order 2006, dealing with annual leave. This replaces the requirement for such regulations to be subject to confirmatory procedure with a requirement for them to be subject instead to the draft affirmative procedure. This is for consistency with other regulation making powers concerning annual leave.

111. The Committee agreed that it was content with Clause 20 as drafted.

Part 5 General Provisions

Clause 21. Supplementary, incidental and consequential etc. provision

112. Clause 21 is a standard provision empowering the Department to make supplementary, incidental, consequential, transitional, transitory or saving provision.

113. The Committee agreed that it was content with Clause 21 as drafted.

Clause 22. Repeals

114. Clause 22 gives effect to the repeals in Schedule 2.

115. The Committee agreed that it was content with Clause 22 as drafted.

Clause 23. Commencement

116. Clause 23 is a standard provision allowing the Department to make commencement orders bringing the provisions of the Bill into operation on one or more dates.

117. The Committee agreed that it was content with Clause 23 as drafted.

Clause 24. Short Title

118. Clause 24 provides for the Short Title of the Work and Families Act (Northern Ireland) 2014.

119. The Committee agreed that it was content with Clause 24 as drafted.

Schedules

Schedule 1 Minor and consequential amendments

120. The Committee agreed that it was content with Schedule 1 as drafted.

Schedule 2 Repeals

121. The Committee agreed that it was content with Schedule 2 as drafted.

Long Title

122. The Committee agreed that it was content with Long Title as drafted.

Consideration of Key Issues

123. Despite the fact that the Committee was content with the Clauses of the Bill as drafted, a range of issues were raised which will be legislated for in the Regulations which the Bill allows for. These issues raised by stakeholders are outlined below along with the Committee’s recommendation.

Two week negotiation period may not be long enough

124. The CBI view is that the proposed system of allowing a two week discussion period as the initial part of an eight weeks’ notice period is sensible. However, they believe that there are practical concerns regarding instances when this two week negotiation period might be impossible for certain employers to implement. For example, in cases when an employee’s line manager is on annual leave or for employees who work on shift patterns which do not coincide with their manager’s, this negotiation period might need to be significantly longer. For smaller businesses in particular, there are likely to be occasions when staffing levels are low and dealing with requests within two weeks will be impossible.

125. The CBI warns that the period of notice could prove difficult as ensuring temporary staff cover for short period of leave with only eight weeks’ notice could prove both challenging and costly. The CBI states that businesses need to understand their employees’ intentions as soon as possible to effectively plan resource in advance and reduce the operational and financial impact of manpower planning, absence cover and training. Ensuring temporary staff cover for short period of leave with only eight weeks’ notice could prove both challenging and costly for businesses – particularly smaller enterprises and those whose employees cover niche roles where training is required.

126. The CBI recommends that the two week negotiation period should therefore be a minimum guideline rather than a requirement.

Department’s response

127. The Department’s response is that its proposal is to require employees to provide eight weeks’ notice; a set period of two weeks at the outset of (and included within) that eight week period is intended to facilitate negotiation between the employer and employee to agree the leave arrangements. The purpose of the Department’s decision is to allow employers to know their employees’ definite leave plans at least six weeks before any leave starts. However it is appreciated that there will inevitably be some situations where agreement to proposed leave patterns cannot be reached.

128. For this reason, the Department intends to provide in regulations that when employers and employees cannot agree arrangements within the allocated two week timeframe, the employer may be able to require that the employee take the full amount of leave requested in one continuous block, starting on a date of the employee’s choosing (providing that date does not fall before the end of the minimum notice period from when the notification was originally submitted). The objective is to provide certainty for both parties in advance of leave commencing.

129. Outside this two week period, flexibility and scope for further negotiation will be provided by the fact that the employee will need to give a non-binding indication of intention when requesting shared parental leave, and will have up to three opportunities to notify, at least eight weeks in advance, the actual period or pattern of leave. Any changes that are mutually agreed between the employer and employee will not count towards the cap of three notifications.

Committee view

130. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

The proposals provide scope for an employee to make and then withdraw a request, resulting in wasted employer time

131. The EEF NI express concern that if someone puts in a request, they can withdraw it in favour of a discontinuous period of leave, thereby chunking it into three periods. The request can be withdrawn even though the company might have considered and agreed it. That would not count as a request. This could waste a lot of time considering requests that employees subsequently withdraw — understandably, perhaps, because the reciprocal employer has not agreed their partner’s request, meaning that the request no longer makes any sense to them. However, the administrative burden will already have been placed on employers. An employer could be in the position of having taken time considering a request, looking into getting a replacement, yet the employee is back to having three tickets and three requests.

Department’s response

132. It is appropriate that employees have the option to withdraw requests as circumstances can change very quickly around the birth or adoption of a child; and it is essential that working parents have flexibility to respond to these changes. It is equally important that employers have sufficient information and certainty to enable them to plan for employees’ periods of absence.

133. The proposed approach requiring employees to give eight weeks’ notice in advance of taking leave seeks to balance these potentially competing needs.

134. The Department does not intend to set specific requirements around how employers and employees engage in discussion. One or a number of meetings may be appropriate for some, while e-mails or phone calls may suit others. As with all leave requests, employers should allocate sufficient time to considering the request, proportionate to what is being asked for and its expected impact on the business. Where circumstances change, a request is withdrawn and a new one lodged, it will be in both parties’ best interests to work together to agree a leave pattern. Subsequent requests are likely to require less detailed discussion as each party’s general position will already be known. Where the employer cannot agree the proposed pattern, the default position remains that the employee will be entitled to take the leave as a single block.

135. The Department does not envisage that withdrawing requests will be the norm where employers and employees maintain good communication and are exploring options from the outset.

Committee view

136. The Committee accepts the Department’s position on this issue.

The process for requesting leave

137. The EEF NI made the points that an employee’s initial notification of leave should be binding, that employers should be able to veto an unsuitable period of leave and that the two weeks for considering a leave request is too short.

Department’s response

138. The arrangements being put in place are that employees will have to provide a non-binding indication of their expected pattern of leave as part of the notification of their eligibility and intention to take shared parental leave. Although this will not constitute a formal notice to take leave, it should provide the employer with an early understanding of the employee’s thinking around proposed leave patterns and act as a trigger for informal discussions.

139. An employee must give a separate written notice at least eight weeks before the start of any period of shared parental leave. The notice must state when the leave will start and end, and can request more than one period of leave. The first two weeks following receipt of written notification from the employee afford time for formal discussion and consideration of the request. It will be in both parties’ interests to engage in meaningful discussion; employees who want their request to succeed will benefit from engaging realistically and constructively with their employer from an early date.

140. If the employee has asked for a single continuous period of leave, that request may not be refused. This corresponds to the ‘default continuous block’ arrangement.

141. If the employee’s request is for separate periods of leave, the employer has three options: to agree, refuse, or propose alternative dates. If agreement between employer and employee cannot be reached within two weeks, the employee can withdraw the request, or take the leave requested as a single continuous period.

142. A majority of employers and employees should be able to come to an agreement about how the leave may be taken. However, the Department recognises that some employers may have difficulties accommodating more flexible leave patterns. This is why there will be a default position enabling employers to require employees to take the leave they have requested in one continuous block.

143. An employee will have up to three opportunities to notify a period or pattern of leave with at least eight weeks’ notice (in addition to the non-binding indication). The Department will provide that changes that are mutually agreed between the employer and employee will not count towards the cap.

144. There will be no limit on variations agreed between the employee and employer.

Committee view

145. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

The cut-off point for parents taking shared parental leave should be 52 weeks from the start of maternity leave rather than from the birth of the child

146. The CBI states that it is essential that the cut-off point for parents taking shared parental leave should be 52 weeks from the start of maternity leave rather than from the birth of the child so that the exact start date and other cut-off dates in the system can be known from the outset and communicated in advance without problem.

Department’s response

147. The Department response points out that it had sought opinions as to whether the cut-off point for parents taking shared parental leave should be 52 weeks from start of maternity leave or 52 weeks from birth. It notes that while opinions were divided on this, it concluded that it is most appropriate for the cut-off point to be set at 52 weeks from the birth of the child. One respondent to the Committee’s consultation continued to advocate that a period 52 weeks from the start of maternity leave was preferable.

148. The Department is content that opting for a cut-off 52 weeks from the birth of the child is the appropriate approach. This is in keeping with the arrangements in place for the existing right to additional paternity leave, so should be a familiar premise for employers and employees. It will maximise the amount of leave potentially available to the partner who is sharing entitlement. Ending entitlement 52 weeks from the start of maternity leave could, in effect, reduce the amount of leave a partner could share by up to 11 weeks (given that a woman can commence maternity leave as early as 11 weeks before the expected week of birth). This measure is consistent with the Department’s objective of maximising choice and flexibility for parents during the first year.

Committee view

149. The Committee accepts the Department’s position on this issue.

Right to return to the same or a similar job when returning from periods of leave totalling up to 26 weeks

150. The CBI has raised concern about the employee’s right to return to the same or a similar job after taking a period of time off on parental leave. It points out that while most employers strive to guarantee that an employee will return to the same role, “ in instances where there is the potential for an employee to take significant periods of parental leave spanning across 12 months, this can be impossible. A company might require the need for restructuring in order to remain competitive and successful during the considerable period in which an employee is on leave. This may be the case in particular for businesses which are expanding or businesses which are facing financial difficulties.”

151. The CBI therefore makes the suggestion “ that employees should retain the right to return to the same or a similar job when returning from periods of leave after the 26 week mark to the benefit of both parties. This will give employers the flexibility necessary to adapt to changes in the economic and structural landscape of their business and this is at no detriment to employees who will still return to a similar position at the company.”

Department’s response

152. The Department has responded to this issue advising that in its proposals, employees returning from any period of leave that includes maternity, paternity, adoption and shared parental leave totalling 26 weeks or fewer in aggregate will have the right to return to the same job, even if the leave is taken in discontinuous blocks. The right of return thereafter is a right to return to the same job, subject to that being reasonably practicable. One respondent expressed concern about the business impacts of the Department’s ‘aggregated leave’ proposal.

153. The Department remains of the view that its proposal strikes the right balance between protection for individuals and flexibility for business. Failure to make provision of this kind risks discouraging the use of shared parental leave in the flexible manner intended, as individuals may be reluctant to apply for leave in separate blocks for fear that breaking continuity of leave will result in a lesser right of return.

154. The Department does not consider that the option envisaged will place an additional burden on business. Employers already track the number of weeks of family-related leave that each employee takes as part of normal payroll management, and so it should be relatively simple to add up the number of weeks of leave to determine the correct right of return.

155. The legal requirement, to be set out in regulations under new Article 107K(1)(c), will be that an employee has the right to return to the same job (if taking less than 26 weeks’ aggregated leave); and to the same job unless that is not reasonably practicable (if returning from more than 26 weeks’ aggregated leave). In most cases, employers will not even have to consider this issue as it will be only in limited circumstances, such as during major restructuring, that an employer would have to consider returning an employee to a job other than the one in which the employee worked before starting leave.

Committee view

156. The Committee accepts the Department’s position on this issue.

Keeping in Touch days

157. The CBI support the proposal in respect of the Keeping in Touch (KIT) days stating that if mothers and fathers are sharing their parental leave, it is only appropriate that they share their 10 KIT days rather than being given ten each. This is proportionate to the scale of days required to effectively keep in touch. Any more than ten days in total is unnecessary, especially in the case of micro businesses where businesses would be absorbing the additional cost of paying for an employee to be present in the workplace during their leave, whilst also potentially financing the cost of a replacement.

158. However ICTU welcomes the Department’s decision to allow for up to 20 Keep in Touch days.

Department’s response

159. The Department points out that in the consultation, respondents were asked if they considered that up to 10 KIT days per parent during shared parental leave was the right number. The Department has outlined that it now considers that it is appropriate to provide for up to 20 KIT days per person on shared parental leave. This is the option that has been adopted in Great Britain and the Department wishes to ensure that working parents in Northern Ireland are not disadvantaged in this regard. There is no adverse impact on employers because KIT days can only be taken by mutual agreement between employee and employer.

160. The Department remains of the view that the 20 days proposed is reasonable in that it creates more potential flexibility to work during leave without bringing leave entitlement to an end. This could be very useful, for example, where an individual is able to return to work for a particular task, project, training course or event to the benefit of the employer. It could also be helpful in assisting an individual to reintegrate back into work as part of a phased return from leave.

161. The Department does not consider that the increase in the number of KIT days potentially available will be detrimental to employers given the requirement for mutual agreement to their use.

Committee view

162. The Committee accepts the Department’s position on this issue.

Day one right to shared parental leave and pay

163. ICTU noted its concern that if the new legislation does not allow for a day one right to shared parental leave and pay that this will exclude the very low paid and those on short term contracts, a growing proportion of the workforce.

164. ICTU advise that it pointed out, in its submission to the consultation on Sharing Parental Rights that the proposed new rights should be available as day one rights. ICTU believe that not only will this will ensure that no group of workers is disadvantaged but also that it will be much easier for employers to understand and administer. ICTU is therefore extremely disappointed to learn that the Department does not propose to make paternity/parental leave a day one right.

Department’s response

165. The Department response is that Clause 2(2) of the Bill establishes the new right to shared parental leave and permit the Department to make regulations that may specify conditions of entitlement for birth and adoptive parents, respectively, who intend to share parental leave. One such condition concerns duration of employment and permits the Department, by way of regulations, to determine how long a person needs to be in employment to qualify for the entitlement.

166. The Department points out that in its consultation it indicated that, to qualify for shared parental leave, it is envisaged that the parent/carer must have at least 26 weeks’ continuous service with the same employer at the 15th week before the baby’s due date and still be working for the same employer when he or she intends to take the leave. A comparable length of service requirement is envisaged in respect of adoptions.

167. The Bill in fact does not restrict the Department’s ability to specify conditions as to length of service, so in effect could, as presently drafted, allow for shared parental rights to operate from day one by specifying accordingly in regulations. However, in exercising its power to make regulations, the Department will wish to achieve a balance, within the package of new rights taken as a whole, between flexibility for working families and certainty for employers. The Department takes the view that the length of service qualifying condition of 26 weeks is appropriate in that it will give employers a greater degree of certainty that when they take on a new employee, that employee will not be immediately absent from the workplace on shared parental leave. A 26 week period is consistent with the period that applies to the existing additional paternity leave and pay arrangements that are being superseded by shared parental leave and pay. Moving away from this arrangement would be likely to incur significant additional costs.

Committee view

168. The Committee accepts the Department’s position on this issue.

Difficulty arranging cover for employees absent on shared parental leave

169. The EEF NI believes that employers will find it difficult to arrange cover for employees who are absent on shared parental leave.

Department’s response

170. As already noted, there will be no requirement for an employer to agree to multiple periods of leave; where agreement cannot be reached, leave will default to a single block. Cover for these situations will need to be arranged in much the same way as currently to cover absence on additional paternity leave.

171. Where leave is not being taken as a single block, but as multiple periods separated by time back at work, there may in fact be scope for employers to reduce reliance on cover from agency staff. Employees who remain closer to and more engaged with the workplace may be able to deal with issues during their periods back at work which would otherwise fall to be dealt with by someone providing temporary cover.

Committee view

172. The Committee accepts the Department’s position on this issue.

Allowing parents to take leave in one week blocks

173. There is a difference of opinion between ICTU and the CBI on the matter of taking leave in one week blocks. ICTU expresses its disappointment that the Department has chosen not to make parental leave more flexible. ICTU pointed out that only allowing parents to take leave in one week blocks is highly inflexible and will discourage shared parenting. ICTU advocate a system whereby parents could take unpaid leave as both single days or in blocks of less than one week. This would facilitate parents to attend special occasions such as sports days.

174. The CBI however feels that allowing parents to take leave in a minimum of one week blocks would be very difficult for employers – especially small businesses - to manage. They argue that it would make it practically impossible to hire someone on a temporary basis to cover a period of time which is made up of start/stop periods even if the notice given by the employee is sufficient.

Department’s response

175. The Department view is that Articles 107F(1) and 107I(1) provide for regulations to determine the amount of shared parental leave and when it may be taken. In accordance with paragraph (8) of each respective Article, provision must be made in such regulations for the taking of shared parental leave in a single period or in non-consecutive periods. The effect of this is to allow the leave to be taken more flexibly than in a single consecutive block.

176. The Department maintains that the one week minimum is appropriate. Unlike maternity or adoption leave, shared parental leave may be stopped and started. This means that parents can mix periods of work with periods of leave to better balance their professional and domestic responsibilities.

Committee view

177. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Amount of statutory pay available and uptake of the right to shared parental leave is likely to be low

178. ICTU point out that Clause 5 establishes a new entitlement to shared parental pay for qualifying birth parents, adopters and intended parents in surrogacy arrangements. This means that qualifying working parents will now be able to share statutory pay entitlement remaining when a woman ends her statutory maternity pay or maternity allowance or a person ends his or her statutory adoption pay entitlement. The total amount of statutory pay available to both parents will not be more than is available in total at present; however, there will be greater flexibility, where parents choose to use it, in how it is shared.

179. ICTU point out that the biggest deterrent for fathers/partners taking parental leave is because they cannot afford to do so. To achieve significant change in parenting roles and more choice for low income families, the issue of very low pay for those taking time off to care for children needs to be addressed. ICTU disagree with the Department in its view that the proposed rates of pay for fathers and partners are appropriate and strongly believe that this will deter take up of shared parenting opportunities. ICTU note that the Department has given a commitment to ‘keep the uptake of shared parental leave and pay by fathers and partners under review’.

180. ICTU note that the Department has given a commitment to ‘keep the uptake of shared parental leave and pay by fathers and partners under review’ and requests to see a clear terms of reference for this review including a timetable and how the Department would propose to monitor uptake.

Department’s response

181. Other issues raised in response to the Committee’s consultation related the suggestion that the Bill does not go far enough in establishing new employment rights for parents.

182. The first of these was that there is no enhanced standalone leave or pay provision for fathers/partners.

183. The Department has stated its intention to keep the system of shared parental leave as simple as possible for both employers and employees and believes that the system proposed is a balanced package. The Department has considered the overall financial implications of any policy proposals and the fact that any statutory financial support has to take account of affordability for both employers and taxpayers. In light of this the Department considers the proposed rates of pay for fathers and partners to be appropriate. However, as was noted by the same respondent who raised this issue, the Department has made a commitment to keep the uptake of shared parental leave and pay by fathers and partners under review.

184. Clause 12 of the Bill contains enabling powers that could facilitate such a review in future without the need for primary legislation. These powers would enable future regulations to make Statutory Paternity Pay (SPP) available for non -consecutive periods consisting of individual periods of a week or a number of weeks.

185. The Department acknowledges that the uptake of the existing additional paternity leave and pay arrangements is quite low, and that this pattern may continue in the early stages following the implementation of the provisions contained in the Work and Families Bill. The Department is seeking to achieve a more fundamental and systemic change to the way working families share their parental responsibilities. While initial uptake is likely to be low, the Department believes that it should increase with time as the sharing of parental leave becomes more widely accepted and culturally embedded.

186. The new system of shared parental rights should also help to address some of the more negative impacts that women experience in terms of disengagement from the workplace. There is clear evidence that the pay differential between women and men is relatively low in respect of full-time employment. Where that differential becomes more pronounced is for those women who are in part-time employment. The introduction of more flexible parental rights is designed to create more long-term structural change in the way working families care for their children that allows women to remain in full-time employment and compete on a fair and equitable basis within the labour market.

187. The Department also considers that the introduction of the added choice and flexibility that the new rights offer will have positive societal impacts. Evidence shows that fathers/partners want to play a greater role in the upbringing of their children, and that this involvement can be beneficial in terms of children’s social and educational outcomes.

Committee view

188. The Committee accepts the Department’s position on this issue but wishes to receive further information on how and when the Department will review up-take of shared parental leave including the Terms of Reference.

Flexible working

189. Clause 19 extends the right to request flexible working to all employees who have the necessary period of service with their employer (currently 26 weeks). Currently, the right is restricted to parents and carers. The nature of the right will not change; employers will continue to have the right to turn down a request on business grounds.

190. The concept of flexible working is one that is strongly supported by the broad membership of the CBI and it points out that many of its members would take the view that they are already well ahead of legislation on this. The CBI points out that a flexible workforce can lead to better engagement, flexible staffing and more diverse talent pool and therefore it supports reform, “albeit with several areas for further clarity and review”.

191. ICTU welcome the Department’s decision to retain the statutory process governing the right to request flexible working. However it remains concerned that the Bill does not propose to remove the 26 weeks continuous service eligibility rule for those who wish to request flexible working.

192. ICTU points out that it advocated that the right to request flexible working should be a day one right and that having the 26 week qualifying period will exclude many parents and carers, particularly lone parents, who find themselves in precarious employment of limited duration including zero hours contracts.

193. ICTU is concerned about the equality impact of this proposal believing that it may have a disproportionate negative impact on women.

Department’s response

194. The Department also recognises that some employers may have difficulties accommodating more flexible leave patterns. This is why the Bill includes a provision for a default position enabling employers to require employees to take the leave they have requested in one continuous block.

195. A majority of employers and employees should be able to come to an agreement about how the leave may be taken. However, the default provision offers additional certainty for employers in cases where agreement is not possible.

196. Clause 19 of the Bill amends Article 112F of the Employment Rights Order to remove the requirement that an employee must have parental or caring responsibility in order to make a request to an employer to change the employee’s terms and conditions with respect to hours and location of work. The effect of this is to extend the right to request flexible working to all employees who have the necessary period of service (currently 26 weeks). One respondent was dissatisfied with the retention of the qualifying period and suggested that the right to request should become a ‘day one’ right.

197. It is the Department’s considered view that employers need to have certainty over terms and conditions when recruiting new employees; a ‘day one’ right to request would remove that certainty. Employees need to understand that, when taking up new employment, it is unlikely that they will be able to immediately amend terms and conditions, as vacancies are filled on the basis of employer needs at the point of recruitment. Without this qualifying period, employees could be encouraged to take up employment offers which do not suit their needs in the mistaken belief that, once employed, those unsuitable patterns could be easily altered.

Committee view

198. The Committee accepts the Department’s position on this issue.

New right to begin for parents of children expected to be born or adopted in April 2015

199. The EEF NI representatives suggested that the application of the right to parents of children expected to be born or adopted in April 2015 leaves little time for employers to make necessary adjustments to systems. They went on to propose the development at-a-glance guidance, model documents and online toolkits, and a dedicated helpline to provide information on the new rights.

Department’s response

200. The Department recognises that the timescales envisaged are short. However, it does not believe that the introduction of shared parental rights should be delayed, as this would disadvantage Northern Ireland’s working parents. The Department will ensure that guidance and online tools are made available as quickly as possible following passage of the legislation to assist employers and employees to prepare for the new rights’ introduction. While final versions of these materials cannot be provided until the shape of the provisions is agreed, the Department intends to engage with stakeholders by providing, as early as possible, draft copies of proposed guidance, and is already looking at the possibility of producing model documentation and online tools.

201. It should also be noted that the Labour Relations Agency already provides a free and confidential helpline service which will be able to offer employers and employees information about the new rights. The Department will be working with the Agency to ensure that it is able to provide effective information to both employers and employees on the practical operation of the new rights.

Committee view

202. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

User Friendly processes

203. Both the EEF NI and the CBI point out that the high proportion of SMEs in Northern Ireland and the fact that the rights outlined in the Bill disproportionately impact on the small employer mean that the secondary legislation coming from the Bill reflects the difficulty faced by these employers. The CBI believes that the Bill has the “capability to add additional complexity to the system which would be damaging and highly disruptive for businesses to administer. Avoiding such complexities is vital to retaining business support and it is imperative that government across the UK seeks to create a system which is straightforward and easy to use.”

204. The CBI advises that:

i. In order to help businesses with this planning, employees should be required to provide an honest and reasonable preliminary plan establishing patterns and periods of leave. The government needs to provide a form which employees can present to employers indicating their intended patterns of shared parental leave with an eight weeks’ notice period in advance of the start of the mother’s maternity leave.

ii. Government should produce comprehensive guidance stipulating what is and is not appropriate for employers and employees in this situation, and strongly encourage employees to present employers with their plan at the earliest possible opportunity. It is essential, of course, that employers retain the right to say no to requests.

205. The CBI also points out that minimising the administrative burden on businesses must be at the heart of the government’s aims and argues that this will allow parties to focus discussions on issues of substance, and will minimise the opportunity for disputes based on process.

206. The CBI points out that there are worries that employees might complete the form inaccurately due to both lack of clarity in the current draft form and their own lack of understanding of their entitlements and recommends that the form needs to be more precise, with supporting information and guidance for both employers and employees.

207. Further suggestions from the CBI to simplify the procedure further include aligning “ paternity pay and notice period at the end of the 15th week before the expected week of child birth as there is no obvious reason to retain differential notice periods and the risk of confusion such a system brings. The current required notice periods have led to uncertainty and employee queries. A simple, clear system would avoid unnecessary hassle and make it easier for employees to fill out their self-declaration form.”

208. CBI also states that it is essential that the cut-off point for parents taking shared parental leave should be 52 weeks from the start of maternity leave rather than from the birth of the child so that the exact start date and other cut-off dates in the system can be known from the outset and communicated in advance without problem.

Department’s response

209. The Bill provides that regulations dealing with the key elements of the new rights will be subject to the confirmatory procedure. The intention is to ensure that the Assembly has an opportunity to debate their content. The Department gives its assurance that it is committed to developing regulations that minimise the administration associated with the implementation of the new rights, and that appropriate user-friendly guidance will also be put in place.

Committee view

210. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Arrangements that will be in place for recouping overpayments and allowing employers to communicate to verify information

211. The EEF NI inquired as to the arrangements that will be in place for recouping overpayments of statutory shared parental pay. The organisation also wishes to see provision allowing employers to communicate so as to be able to verify information that is included in leave requests.

Department’s response

212. Employers will be able to recover overpayments of statutory shared parental pay in the same way as overpayments of additional paternity pay are recovered at present.

213. Employers will not be liable in the event of an employee claiming too much leave.

214. While employers will be able to request the contact details of a claimant’s partner if they wish – as they can under the current additional paternity arrangements – they will not be expected to perform detailed checks.

215. In the event of fraud being detected, employers will use their own policies to determine how the employee is dealt with by them in the same way that they would in the event of other misconduct coming to light.

216. Her Majesty’s Revenue and Customs (HMRC) will use a risk based regime to identify parents who have claimed beyond their entitlement to shared parental pay. Individual claimants can be linked via their national insurance numbers. Penalties comparable to those in place for abuse of other statutory rights to paid leave will be put in place.

217. Employers failing or refusing to operate the scheme correctly could incur civil penalties. Penalties could also be imposed on employees who fraudulently or negligently give incorrect information, or who make a false statement or declaration. In these circumstances, the employer would not be penalised for having paid a statutory payment in good faith.

Committee view

218. The Committee accepts the Department’s position on this issue.

Fear of being open to sex discrimination

219. The EEF NI sought assurance that there is no sex discrimination risk where employers continue to offer enhanced occupational maternity pay once shared parental rights are in place.

Department’s response

220. An occupational maternity scheme can only be offered to a woman on maternity leave.

221. If an occupational scheme is offered to a mother on shared parental leave, it could constitute sex discrimination if such a scheme were not offered to fathers/partners of the mother.

222. It will be entirely at the discretion of employers whether they wish to offer occupational parental schemes for men and women sharing parental leave once maternity leave has ended.

Committee view

223. The Committee accepts the Department’s position on this issue.

Guidance

224. The CBI agrees with the EEF NI that the success of the legislation depends on good guidance. For the changes in the Bill to succeed, the CBI also believe it imperative that detailed, practical and understandable guidance for both employers and employees is published well in advance of April 2015 so that all involved can familiarise themselves with the new processes. That will require the legislation to be kept as clear and practicable as is feasible so that effective, user friendly and timely guidance can be published.

225. The EEF NI advocates the use of “At a Glance Guides” setting out the main rights with supplemental Guidance providing further detail on particular aspects of the rights. The EEF NI also suggests that standard documents would be helpful such as the Notification Document of the intended leave pattern.

Department’s response

226. The Bill provides that regulations dealing with the key elements of the new rights will be subject to the confirmatory procedure. The intention is to ensure that the Assembly has an opportunity to debate their content. The Department gives the assurance that it is committed to developing regulations that minimise the administration associated with the implementation of the new rights, and that appropriate user-friendly guidance will also be put in place.

227. Consequently, as some respondents have acknowledged, the successful implementation of the new rights provided for within the Bill will be dependent on the preparation of effective regulations, supported by appropriate guidance and other materials designed to assist employers and employees in operating the new systems.

Committee view

228. The Committee considers that the Department’s response is adequate but will seek the Department’s assurance that the associated guidance has been reviewed by key stakeholders.

Alignment with legislation in Great Britain

229. On this issue there is a difference of opinion between ICTU and the CBI. The CBI view is that while employment law is devolved to Northern Ireland, in this particular aspect it remains wise to follow whatever lead Great Britain takes on the issue – notably in respect of the amount of subsidiary companies that operate in Northern Ireland whose parent company is based in Great Britain.

230. On the other hand the ICTU view is that if the Northern Ireland Executive was serious about addressing inequality in society and creating a culture of shared parenting, that the proposals needed to go beyond what was contained in the UK proposals.

Department’s response

231. The Department’s view is that it should remain in line with the legislation in GB to make the operations of schemes transferrable for businesses operating across the UK.

Committee view

232. The Committee accepts the Department’s position on this issue.

Another individual as a person with whom parental leave could be shared

233. ICTU understand that the Department is not proposing to allow parents to nominate another individual as a person with whom parental leave could be shared and it is disappointed that one of the reasons for not doing so has been given as “ such an approach would represent a substantial departure from the system proposed and would remove the benefits of consistency across the UK”.

234. ICTU disagree with this and point out that the Northern Ireland Executive has an opportunity with this piece of employment legislation to reduce inequalities. Facilitating this would particularly benefit lone parents who may wish to share their entitlement with the child’s grandparent for example.

Department’s response

235. The Department did consider whether it might be feasible to allow a single parent to nominate another individual, for example a close family member, as a person with whom parental leave and pay could be shared. However, it was decided that, at this time, such an approach would complicate administration for employers and might be more open to abuse. It would also represent a substantial departure from the system proposed; would remove the benefits of consistency across the UK; and would incur additional costs. This remains the Department’s position.

Committee view

236. The Committee accepts the Department’s position on this issue.

Paid leave will not accompany rights for partners to attend antenatal appointments

237. While ICTU welcomes the commitment to establish rights for partners to attend antenatal and pre adoption appointments, it is disappointed that paid leave will not accompany these rights. ICTU draw to the Committee’s attention the impact on those in low paid employment of having to take unpaid leave for these important appointments.

238. ICTU argues that if this right is to “encourage shared parenting from as early a stage as possible”, then it is going to be made much more likely if the leave is paid. The restriction to two appointments is, in ICTU’s view, inadequate and it suggests that the right to time off should be for a reasonable period of time and should also apply to agency workers as a day one right.

Department’s response

239. The Department advised that partners will have the right to attend antenatal and pre adoption appointments but that it will remain un-paid.

Committee view

240. The Committee accepts the Department’s position on this issue.

Kinship carers

241. Pat Ramsey MLA expressed disappointment that the issue of kinship care is not dealt with by the Bill and indicated that he would wish to see a meeting between Departmental officials and Kinship Care Northern Ireland.

Department’s response

242. The Department’s preliminary investigations into addressing this matter by way of the present Bill have indicated that incorporating such a provision is likely to be very challenging and would compromise the ability to secure passage of the Bill. The following issues are offered for the Committee’s further consideration.

243. There is significant doubt that kinship care lies within the legislative scope of this Bill. Kinship care is a cross-cutting issue in which the Department is not the lead department. There are certainly implications for the lead policy department, the Department for Health, Social Services and Public Safety, and, potentially, the Department for Social Development, arising out of any proposed changes. Action to legislate on the matter would therefore require further public consultation, legal advice, engagement with affected departments and Executive agreement. All of these actions would not be possible to achieve within the life cycle of this Bill.

244. The Department’s initial investigations further indicate that the following issues would require consideration before statutory leave could be provided for kinship carers.

245. There does not appear to be an established and accepted legal definition of what precisely constitutes kinship care. There will be a need to identify a particular target group to which the arrangements ought to extend.

246. Introducing such a provision at the same time as shared parental leave is likely to be perceived as an additional burden on employers.

247. This measure has not been the subject of public consultation; nor has it been impact assessed.

248. It is unclear how evidential requirements could be sufficiently tightly drawn to allow for coverage of ‘informal’ kinship care arrangements.

249. Although formal kinship care arrangements should be easier to evidence as, typically, they concern fostering and the involvement of Social Services, it may be legally problematic to establish differential treatment between formal arrangements for foster parents who are not kinship carers and those who are.

250. As the length of informal kinship care arrangements can vary considerably, it will be necessary to consider questions such as what the qualifying length of placement should be for such an arrangement to fall within the legislative provisions for statutory leave.

251. Kinship carers are provided with an allowance where formal kinship arrangements are in place. This is not available to working parents or adoptive parents. Provision of two types of payment to kinship carers and only statutory shared parental pay to birth or adoptive parents is likely to give rise to questions of fairness.

252. Seeking to address this complex area as part of this Bill is likely to significantly delay implementation, resulting in regulations not becoming operative as envisaged by April 2015. As well as disadvantaging Northern Ireland’s working parents vis à vis their counterparts in Great Britain, delay risks incurring additional costs for government and employers. Costs could arise if HMRC is required to continue to administer the current additional paternity leave and pay system in Northern Ireland alongside the new shared parental leave and pay system in Great Britain. Employers operating across the UK will also face costs if they are required to understand and operate two separate systems.

253. For all of these reasons, the Department believes that it is not possible to bring kinship care arrangements within the scope of the Work and Families Bill that is currently before the Committee.

Committee view

254. The Committee accepts the Department’s position on this issue.

 

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