Official Report: Minutes of Evidence

The Chairperson (Mr Swann): From the Department for Employment and Learning (DEL), we have Tom Evans, who is the deputy director of strategy in the European and employment relations division, and Mrs Geraldine Lavery from employment relations policy and legislation, who are here to answer any of our queries. Tom, do you want to start?

Mr Tom Evans (Department for Employment and Learning): The regulations will be approved through the confirmatory procedure or the negative procedure. The regulations with the main substance go through the confirmatory procedure, so they will come before the Committee, go to the Examiner of Statutory Rules and be subject to a subsequent Assembly debate. It is important that that happens. At this stage, the regulations have all been drafted and cleared by the Departmental Solicitor's Office (DSO). They will go through the normal scrutiny process through the Examiner and will then come back to the Committee.

You received the SL1 letter, which refers to the regulations. The Committee has been actively involved in the passage of the Work and Families Bill, which received Royal Assent in January. In the Committee's detailed consideration at Committee Stage, it produced a report, and there were some issues. You said that you were content with the Department's response, but you encouraged us and asked us to ensure that we exposed the supporting guidance materials to the stakeholders. If it seems reasonable, I will say something about that, and Geraldine will give an overview of the regulations.

The Committee was keen that we engaged with stakeholders as the guidance was developed. Immediately after the Bill's Final Stage, we issued all the guidance that was available to the people who responded to the initial public consultation, so there was wide coverage at that stage. We also published the draft guidance on our website and invited comments on any aspect of it. In particular, we asked what, if any, information was missing and what improvements could be made. Before the end of 2014, there was the annual employment law conference for HR professionals, who are key people in delivering this, which was attended by over 200 delegates, and the guidance was issued to all the delegates.

When the technical guidance is intentionally detailed, the shorter, more user-friendly guidance for employers and employees is now available on NI Direct and NI Business Info, so people can access it there. Members of my team recently attended an Employers for Childcare seminar on recognising family-friendly employers. There were over 70 delegates at that, and we made a presentation on the shared parental leave and pay arrangements, which was well received. We are also engaging with Employers for Childcare and Parenting NI staff to develop case study guidance and to keep an open channel for feedback from parents as the shared parental leave arrangements roll out from April.

The Department will also deliver an awareness seminar for helpline staff at the Labour Relations Agency who pick up on calls to ensure that they are full conversant with the new arrangements. To be quite honest, we have had fairly limited feedback through all those engagements, so I recently wrote to the stakeholders who responded to the Committee's call for evidence to say that we are here and to offer an individual meeting with each stakeholder.

It is Sod's Law that the only comment that we had was a criticism from one stakeholder, who suggested that some of the guidance was a bit repetitive and that it could have better signposting facilities. We are looking at that very arrangement now to see whether we can improve it. We will continue to engage with stakeholders running up to April this year. We are working with our information and communication teams, and we will have a significant media campaign, which we will roll out to alert people.

We are trying to do everything that we can up to April. There is also a commitment about uptake levels and how we will review them, and the Committee raised that issue. We will come back to the Committee with the terms of reference for how we will take that forward. We are starting to develop our thinking, and Geraldine may have some thoughts about how we will get real information from the employer and employee perspective.

Mrs Geraldine Lavery (Department for Employment and Learning): We are investigating whether HMRC can extrapolate Northern Ireland-specific data so that we can see what the uptake is here. In our engagement with the employee organisations, we are looking at the means to get direct feedback from parents on the uptake because we sometimes have easier access to employers than we do to individual parents. If we work through the parent organisations, we will be able to get real life examples of how the initiatives are working for people. Those are some of the things that we intend to do.

Mr Evans: Those are some general comments in response to the Committee's encouragement for us to engage with stakeholders, and we will continue to do that. Geraldine will cover some of the general material, reflecting on what the new Act will mean for people in Northern Ireland.

Mrs Lavery: I will keep this brief because I appreciate that you are going to move through each regulation. We are conscious that the Committee is familiar with the provisions of shared parental leave and pay, as the Work and Families Bill progressed through the Assembly. I will simply reiterate what shared parental leave will do: it will enable mothers, fathers, partners and adopters how to choose to share their time after their child is born or placed for adoption in the first year after it happens.

It is worth emphasising that this does not erode the employed mother's rights. The mother will retain the right to her maternity leave if she chooses to. It is only if she chooses to opt into shared parental leave that that will happen. It is also important to highlight the fact that the regulations that we have drafted extend the same rights to adopters as they do to birth parents. Paid paternity leave of two weeks remains, but additional paternity leave is removed because the new better offer of shared parental leave is now available to parents.

As the Work and Families Bill progressed through the Assembly, a number of references were made to the fact that it is an enabling Bill. Essentially, that is why we have so many regulations now — 22 statutory rules — because they contain the detail that will make the system work. You received the table with the title of each rule, the Assembly procedure, which Tom mentioned, and a summary of the main impact of each regulation, so I will not go through them individually. The measures will be familiar to the Committee because, as the Bill progressed, the Department had already advised what it intended to do, and the regulations give effect to those provisions.

The key implications for shared parental leave are that parents will be able to share that right to be away from work for the care of their child in the first year. The maximum amount of shared parental leave will be based on maternity leave used, so, in a sense, that is the balance with the employer. The combined entitlement is still 52 weeks of maternity leave. What is left for shared parental leave will be the untaken maternity leave. Shared parental leave can be taken in separate blocks of one week, subject to the notice requirements and employer agreement. Employers can refuse requests to take leave in discontinuous blocks. That is balanced for employees, in that they have a right to book a maximum of three separate blocks of leave, although the employer can agree to more, so the provision encourages negotiation and discussion between employers and employees, which will hopefully benefit both.

The notice is a key requirement because it is a new right for employers, and they have businesses to manage. That means that, on each occasion before people can take the leave, they must have given their employer eight weeks' notice. They have an opportunity to negotiate, but that is also supported by an initial non-binding notice from employees when they first advise an employer of their entitlement to shared parental leave. The stages that have been incorporated are about encouraging discussion and understanding the needs of each other so that the solution will be to the benefit of the employer and the employee.

It is appropriate to note that shared parental leave can start only once a child has been born or adopted, and the mother or adopter must have ended their maternity leave or adoption leave by returning to work or giving binding notice to their employer of the date on which they plan to end their maternity leave. That is one of the real positives of shared parental leave. What distinguishes it from additional paternity leave is the fact that both parents can be off at the same time, which will sometimes work better for the parents.

In order to avail themselves of shared parental pay, an employee or their partner must be eligible for maternity pay or leave, or maternity allowance and adoption pay or leave. The employment must also meet continuity of employment tests, and the person must be employed by the same employer while taking shared parental leave.

For parent two, during the 66 weeks before the pay is due, the partner must have been working for at least 26 weeks and have earned at least £30 a week on average in 13 of the 66 weeks. The regulations set the weekly rate of the statutory pay. Shared parental pay has been set to be paid at the rate of whichever is lower at the moment: £138·18 a week, which will move to £139·58 from 6 April, or 90% of an employee's average weekly earnings. An additional element of flexibility will be facilitated through the creation of 20 shared parental leave keeping in touch (KIT) days, known as SPLiT days, which will be available to both parents. Again, that will allow greater flexibility for the parents, who will be able to be away from work but can still come to work and engage with their employer, but, as they are subject to agreement, the employer will not be forced into permitting someone to use those.

Additional provisions of note in the regulations are that the arrangements will apply to situations in which a child is placed with foster carers with a view to adoption. That is quite significant in the early stage in a new relationship that those rights can be accessed. There are provisions to ensure that the rights can also be accessed by parents in a surrogacy arrangement. There are also provisions that protect parents on their rights when they return to work.

The Chairperson (Mr Swann): Anna and Bronwyn, you indicated that you wish to speak. Is it on a general issue, or is it specific to an SL?

Ms Lo: It is a general point. I am new to the Committee, so I was not here for the scrutiny stage. You mentioned pay. A lot of organisations have maternity benefits for a mother, so they pay 100%. Are you saying that fathers or partners will now be entitled to that?

Mrs Lavery: The regulations are about the statutory entitlement. Contractual enhancements and shared parental leave will remain at an employer's discretion, in the same way that enhanced maternity contractual pay is at an employer's discretion. We are advising stakeholders to be aware that, if they were to be kind and extend maternity pay to a mother who ends her maternity leave and moves straight into shared parental leave, they would need to do the same for fathers in their organisation who are on shared parental leave. There will need to be a clear distinction between maternity entitlement, which is specific to females, and shared parental leave. Any enhanced shared parental pay contractually should be accessible to male and female employees, if an employer chooses to do that.

Ms Lo: Is it still discretionary?

Mrs Lavery: Yes.

Ms McGahan: I have a couple of questions that are specific to the SL1. Will I leave them?

The Chairperson (Mr Swann): Yes, we will take them at each stage as we go through.

Ms McGahan: The technical guide states:

What does that mean?

Mrs Lavery: There is currently a right that enables mothers and fathers to share leave, but the father cannot access it. I am using the word "father", and I am conscious that there is a representative of an adopter here. A father cannot access that right to additional paternity leave until week 20 after the birth. Parents can choose to replicate that arrangement using shared parental leave if they wish, in that the mother could take the first chunk of leave up until week 20, and the father could take the remainder on shared parental leave. For that reason, additional paternity leave is abolished because shared parental leave does more than it does. Shared parental leave allows greater flexibility so that, for example, parents can be off at the same time, the father can take the leave at a much earlier date, and it can be interspersed with periods of being in work and out of work. Additional paternity leave and current maternity leave arrangements do not permit that. Once you come back to work, with the exception of your KIT days, that brings it to an end, and you do not have the option of using the leave at a later point in those 52 weeks.

The Chairperson (Mr Swann): Across the water, the Labour Party announced that it wants to move to four weeks' paternity leave. Should that party be in government, how would it affect any work being done?

Mr Evans: All these things have a cost implication, and, to be quite honest, we are keeping an eye on all the manifestos because, post the May 2015 Westminster elections, a new government will be in place. It is probably better to wait and see. We have devolution in Northern Ireland, so it will be for our Minister to decide how he wants to proceed, in consultation with the Committee and the Assembly. A range of interesting things are coming out.

The Chairperson (Mr Swann): So you are saying that it is 8 May, Tom.

Members, if we are content with that, we will move on to the SL1s. The first SL1 is the Work and Families Act 2015 (Commencement, Transitional Provisions and Savings) Order (Northern Ireland) 2015. It is subordinate legislation for the Work and Families Act (Northern Ireland) 2015. In your papers, at annex A, point 1 sets out the main impact of the regulations, and the statutory rule is not subject to any resolution. Are members content with the rule?

The Chairperson (Mr Swann): The next SL1 is the Paternity and Adoption Leave (Amendment) Regulations (Northern Ireland) 2015. Point 2 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposal?

Ms McGahan: Chair, annex A states:

What does that mean?

Mrs Lavery: That means that a primary adopter has the same entitlement as a mother on maternity leave, which is the entitlement to leave straight away. There does not have to be a qualifying period. It aligns a primary adopter's rights with a mother's rights in that they immediately have access to leave. That was not previously the case.

Mr Evans: It is more restrictive under the current arrangements, which are still in place until April this year.

The Chairperson (Mr Swann): So it eases that.

Mrs Lavery: Essentially, as I said, it aligns a primary adopter's rights with those of a mother or primary carer in a birth situation. That is the intention of those measures.

The Chairperson (Mr Swann): Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next statutory rule is the Shared Parental Leave Regulations (Northern Ireland) 2015. Point 3 sets out the main impact of the regulations, and the statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): We will move on to the next SL1, which is the Statutory Shared Parental Pay (General) Regulations (Northern Ireland) 2015. Point 4 sets out the main impact of the regulations, and the statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations (Northern Ireland) 2015. Point 5 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Employment Rights (Northern Ireland) Order 1996 (Application of Articles 107G and 107I to Adoptions from Overseas) Regulations (Northern Ireland) 2015. Point 6 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

Ms McGahan: Could you elaborate a wee bit on the explanation that you provided of the main impact of the regulations, please?

Mr Evans: Is this at point 6?

The Chairperson (Mr Swann): Yes, specifically on articles 107G and 107I and what that means.

Mrs Lavery: What that means is that the extension of rights to adopters will apply in the specific situation of an adoption being from overseas as opposed to a Northern Ireland-based adoption — that means anything that applies to adopters who are based in NI. If a parent is adopting a child from overseas, they will have access to the same rights as opposed to it being based on the adoption being in a non-Northern Ireland jurisdiction. Whether it be the right to shared parental adoption leave and pay or the right to attend antenatal appointments, it will apply equally whether the adoption is from overseas or is Northern Ireland-based.

Ms Lo: That is quite sensible. More and more people are adopting from overseas.

The Chairperson (Mr Swann): Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Shared Parental Leave and Paternity and Adoption Leave (Adoptions from Overseas) Regulations (Northern Ireland) 2014. Point 7 sets out the main implications of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Statutory Shared Parental Pay (Adoption from Overseas) Regulations (Northern Ireland) 2014. Point 8 sets out the main impacts of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Employment Rights (Northern Ireland) Order 1996 (Application of Articles 107A, 107B, 107G, 107I, 112A and 112B to Parental Order Cases) Regulations (Northern Ireland) 2015. Point 9 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

Ms McGahan: Can I just ask you to elaborate on a parental order?

Mrs Lavery: A parental order relates to surrogacy arrangements. In these regulations, references to a parental order relate to surrogacy cases in which there is obviously a biological connection between the parent and the child, but the birth mother is not necessarily the biological mother. The way in which that arrangement becomes a legal parent-child relationship is slightly different from a normal adoption. It is referred to as a parental order. I suppose that the best way to describe it is that it establishes the parental guardianship.

The Chairperson (Mr Swann): Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations (Northern Ireland) 2015. Point 10 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Statutory Shared Parental Pay (Parental Order Cases) Regulations (Northern Ireland) 2014. At page 182, point 11 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Paternity and Adoption Leave (Amendment) (No. 2) Regulations (Northern Ireland) 2015. On page 182, point 12 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

Ms McGahan: Again, will you elaborate on the second bullet point, please?

Mrs Lavery: I am sorry: may I come back to you on that one with more detail, Bronwyn, if you do not mind? I do not have the detail of the full regulation.

Ms McGahan: So, you will come back?

Mrs Lavery: Yes, if that is OK, to explain that one fully.

The Chairperson (Mr Swann): In that case, I assume that members are not content with that SL1 and we will reschedule for next week.

Mr Ramsey: That is fair enough.

The Chairperson (Mr Swann): Tom, you do not look sure. I would rather be —

Mr Evans: No, no. Chair, we will come back with that detail.

The Chairperson (Mr Swann): We will be happy enough to schedule you in for next week specifically on this point so that we can keep the process moving. Bronwyn, is that OK? Are you fine with that?

Ms McGahan: That is fine.

The Chairperson (Mr Swann): Members, just to clarify, we are not content with that SL1.

The next statutory rule is the Maternity and Parental Leave etc. (Amendment) Regulations (Northern Ireland) 2015. It is at page 183 of the pack. Point 13 sets out the main impact of the regulations. The statutory rule is subject to confirmatory resolution. Are members content with the proposals for the statutory rule?

Ms Lo: Will you elaborate on that, too? The first point states that it will:

before the child reaches adulthood.

Mrs Lavery: Currently, parental leave — that is different from shared parental leave — is a right that parents can exercise at any time until their child is aged five. This will remove that age limit so that it now moves to 18. It is a separate entitlement from shared parental leave.

Ms Lo: OK. Is there statutory pay?

Mrs Lavery: It is unpaid leave.

Ms Lo: OK. So, you are really just extending it from the age of five to 18.

Ms McGahan: I do not really get that.

The Chairperson (Mr Swann): Right.

Mrs Lavery: I suppose that it is the nature. We can come back in more detail on what you would like to know specifically.

Ms McGahan: Can you just come back to us on the whole of point 13?

Mrs Lavery: Certainly.

Ms McGahan: Thank you.

The Chairperson (Mr Swann): I am sorry: hold on. Can I clarify this? My reading of this is that you have extended the right to parental leave. When a child reached five years old, you could not take it. Now, that has been extended until the child is 18. You have actually extended parents' opportunity.

Mr Evans: Yes.

Ms Lo: It is unpaid leave.

Mr Evans: It is unpaid. It provides greater flexibility.

The Chairperson (Mr Swann): It is unpaid, so there is no implication.

Mr Buchanan: What is the problem with that?

The Chairperson (Mr Swann): Bronwyn, are you content with that?

Ms McGahan: That is fine.

The Chairperson (Mr Swann): I do not want to force anything. Members, are you content with the proposals for that statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Flexible Working Regulations (Northern Ireland) 2015. It is at page 183. Point 14 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Statutory Shared Parental Pay (Persons Abroad and Mariners) Regulations (Northern Ireland) 2015. It is at page 183. Point 15 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Statutory Adoption Pay (Curtailment) Regulations (Northern Ireland) 2015. It is at page 183. Point 16 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

Ms McGahan: Chair, could we have a bit more information on the first bullet point under point 16?

Mrs Lavery: It states:

Under this right, before a parent can access shared parental pay, they have to have brought their previous adoption or maternity entitlement to an end. Curtailment basically means that notice is given: you can do it in advance by giving notice that entitlement will end at a certain date, which means that the other parent can be off at the same time.

Mr Evans: The word "eligible" means the primary adopter in this case. It gives greater flexibility. These measures are contingent on the passing of the general legislation. The rules ensure that all the rights are available that were set out in the consultation on the Bill.

Ms McGahan: Thank you.

The Chairperson (Mr Swann): Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next statutory rule is the Statutory Shared Parental Pay (Administration) Regulations (Northern Ireland) 2015. This is on page 183. Point 17 sets out the main impact of the regulations. Again, this statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

Ms McGahan: Chair, could we have a bit more information on the first bullet point, please? It states:

Could you elaborate on that?

Mr Evans: It is about recovery rates. For smaller employers, I think the rate is 103%. For large employers, it is 92%.

Ms McGahan: How do you define a smaller employer?

Mr Evans: I would need to go back —

The Chairperson (Mr Swann): It is set out in legislation.

Mr Evans: It is set out in legislation. That is determined by HMRC, not us. This is about a relationship between the employer and HMRC. We do not get involved in that, but the rule allows that to happen.

Ms McGahan: OK.

Ms Lo: It is probably determined by yearly turnover or the number of staff.

Mr Evans: I am not sure how HMRC determines it. It is probably based on revenue as opposed to the number of employees. The threshold is probably based on the level of National Insurance contributions made on behalf of the employees.

The Chairperson (Mr Swann): Are members content with the proposals for the statutory rule?

Mr Buchanan: Chair, we would perhaps be concerned about the second part of that, where it talks about imposing "obligations on employers".

Mr Evans: This is about employers providing the right information. It is about the accountability of employers for what they are recovering. It is actually more about protecting employers.

Mr Buchanan: Yes. That is OK.

The Chairperson (Mr Swann): I think that it is just the wording, Tom. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next statutory rule is the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (Application of Parts 12ZA, 12ZB and 12ZC to Parental Order Cases) Regulations (Northern Ireland) 2015. This is on page 184. Point 18 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content?

Ms McGahan: Chair, I am not content. I would like to request a written explanation prior to our meeting next week, if you do not mind.

The Chairperson (Mr Swann): Tom and Geraldine, are you content to provide that?

Mr Evans: Yes.

The Chairperson (Mr Swann): OK, members. If we are not content with that statutory rule, we will come back to it next week.

The next statutory rule is the Statutory Paternity Pay and Statutory Adoption Pay (General) (Amendment) Regulations (Northern Ireland) 2015. It is on page 184. Point 19 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SR is the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (Application of Parts 12ZA and 12ZB to Adoptions from Overseas) (Amendment) Regulations (Northern Ireland) 2015. This is on page 184. Point 20 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The next SL1 is the Statutory Paternity Pay and Statutory Adoption Pay (Parental Orders and Prospective Adopters) Regulations (Northern Ireland) 2015. This is on page 185. Point 21 sets out the main impact of the regulations. The statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): The last one is the Shared Parental Leave and Statutory Shared Parental Pay (Consequential Amendments to Subordinate Legislation) Order (Northern Ireland) 2015. This is on page 185. The main impact of the regulations is set out in members' packs and the statutory rule is subject to negative resolution. Are members content with the proposals for the statutory rule?

The Chairperson (Mr Swann): OK, Members. Thank you for that. Tom and Geraldine, we require more information on two SL1s. As soon as you get that to us, we will schedule you for next week to make sure that we keep the process moving.

Mr Evans: We really appreciate that. It is complex stuff, and we have a team burrowing away and drafting the rules. It is comforting that the Committee is taking the time to look at them, and we are happy to come back and give sufficient clarification.

The Chairperson (Mr Swann): Tom and Geraldine, thank you very much for your time.