Parental Bereavement (Leave and Pay) Bill

Debate between Kevin Foster and Michael Tomlinson

3rd reading: House of Commons & Report stage: House of Commons
Friday 11th May 2018 Commons Chamber

[Kevin Foster]

It makes a change to be called first in a Friday debate. [Interruption] Yes, or ever. I usually have to wait for at least three or four hours before being called.

First, let me make it clear that I fully support the Bill promoted by my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), and I have no intention of attempting to make a monumentally long speech to talk it out. However, my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) and I wish to test some of the provisions, particularly in the schedule. We do not propose amendments to the two main clauses; our amendments are only to the schedule, as we would like to hear a bit more about some aspects of it and to test the reaction of my hon. Friend the Member for Thirsk and Malton and the Minister to some of our amendments.

This is a simple Bill; it has just two clauses, one of which is the title clause. However, the attached schedule requires further debate and scrutiny on the Floor of the House. I should make it clear that no employee in the country would ever want to benefit from the Bill’s provisions, as it addresses what would undoubtedly be one of the most difficult periods in anyone’s life; all parents and grandparents will want to see their children and grandchildren live long and happy lives. However, it is to be welcomed that the House is talking about this subject today, and we hope that the Bill will receive its Third Reading and head off to the other place. The Bill demonstrates how MPs can in this place draw on their personal experiences to make a difference for others who might have to deal with similar experiences. I accept that some of the issues we will be discussing today might have been debated in the Bill Committee, but, sadly, I was not lucky enough to be selected to serve on it, which is why I raise them on Report.

In the interests of brevity, I will talk about my amendments in groups, according to the themes they cover, rather than go through each one individually. Also, some of the amendments work in combination to offer distinct packages that address particular themes, and in these cases it would not make sense to pass one amendment but not another, as that would create odd law.

The amendments cover four distinct themes. The first deals with people who act as the parent but are not the biological parent, such as a primary carer who has picked up the reins when things go wrong; that is addressed by my amendments 1 and 2 and amendment 12 from my hon. Friend the Member for Mid Dorset and North Poole. The second theme is the issue of when leave may be taken, given that some people might wish to work in the immediate aftermath of losing a child but subsequently find that grief requires them to take time off at a slightly later date; not everyone reacts in the same way. This area is addressed by my amendments 3 and 5, amendments 22 and 23 in the name of the hon. Member for North Ayrshire and Arran (Patricia Gibson) and amendments 15, 16, 17 and 20 from my hon. Friend.

The third theme involves the requirement to give notice and, given the nature of this provision, my proposal for a requirement to give reasonable notice instead. This is covered in my amendments 9, 10 and 11. The fourth theme relates to the cut-off created by the 18th birthday and the proposals to change the definition of a child so that the provisions refer not only to sons and daughters under the age of 18. This is covered by amendments 6, 24 and 21. Finally there are three more amendments that I will speak to specifically: amendments 4, 7 and 8.

I shall start with the first theme. Sometimes, the person acting as a parent is not the biological parent. They could be a primary carer who has picked up the reins when things have gone wrong. Amendments 1, 2 and 12 cover this area. I think that we would all agree that parenting is not just about biology. It is not just about who has physically created a child, as we see with egg and sperm donor births. My concern is that if the Bill is passed without amendment to the schedule, there could be too much focus on the parent, rather than on the person who has done the parenting by looking after the child, bringing them up and loving and caring for them. The amendments will make it clearer that this is about the primary care giver—the person who is acting as the parent. I would be interested to hear my hon. Friend’s views on this and those of the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Richard Harrington). We would not want to get into a situation where the person or couple who were acting as the parents could not take time off, yet an estranged biological parent could do so.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

I, too, have put my name to this amendment, and I intend to speak to it in a few moments. The way in which the Bill is drafted means that the Minister will lay regulations in due course, but should we not take this opportunity now to express our views on the Floor of the House about what the definition of a bereaved parent should be? Of course we trust Ministers to get this right, but it is for us as well to put forward what we think would be the appropriate definitions—hence these amendments.

[Kevin Foster]

Absolutely; I could not agree with my hon. Friend more. I accept that the Bill has had a good run in, particularly due to the valiant efforts of my hon. Friends the Members for Colchester (Will Quince) and for Eddisbury (Antoinette Sandbach), but it is important to examine these questions on the Floor of the House, especially when we are dealing with Private Members’ Bills. They are slightly different from Government Bills, which might have had lengthy periods of consultation in Green Papers and White Papers, perhaps following a manifesto commitment. This Bill also has a manifesto commitment behind it, but I shall not refer to that further because it already enjoys cross-party support. All the parties represented in the Chamber today strongly support creating this type of provision.

This is about being very clear, so that anyone seeking to interpret this legislation at a later date will know what our intention was in passing it. We also want to be clear what is in the Minister’s mind on this subject. Who exactly is the parent under this legislation? Someone sitting at home listening to this might wonder what on earth this discussion is about. Actually, it is about ensuring that the legal definition involves not only the biological parents but those who are effectively parenting and looking after a child as though they were the parent at the sad time of that child’s death.

This brings me to my own experience in local government in Coventry, where we had child protection services. Often, a way to avoid a child going into care was for a relative, particularly a grandparent, effectively to become the parent. The child would be placed with them to keep them within the family and maintain some parental contact, without being formally adopted. I accept that, under the current wording of the Bill, someone is legally the parent if there has been a formal adoption process. There should be no confusion about that.

I want to ensure that the regulations will cover a situation in which a grandparent, uncle or aunt—or even a much older brother or sister—has stepped into the parent’s shoes to act in absolutely the right way. In the child protection context, that sometimes involved someone giving their younger brother or sister a chance to stay out of an institution. I want someone who has taken on that role to be able to benefit from this type of provision. They will have developed exactly the same bonds of attachment as a parent and, sadly, they will also have had to deal with the formalities following the death in the same way that a parent would normally do. I want the Bill to cover them as well.

--- Later in debate ---

[Kevin Foster]

Bereavement leave should be a day one right, and I am reasonably supportive of the hon. Gentleman’s idea, or at least of having an idea of how an employer should approach leave for employees who have worked for them for a very short period of time. I accept it is probably slightly different for people who have worked for their employer for a very short period of time, but I think we would all hope and expect an employer to behave reasonably, because clearly this is not something a parent will have planned. This is not a provision of which any parent wants to take advantage, far from it. I am sure every parent in the Chamber would hope they never have to take advantage of this provision. I am interested to hear the Minister’s response on how we set that limit.

Again, we do not want the ludicrous situation in which a person, for the sake of argument, has worked one day short of the limit—for example, the death happens at 11 o’clock at night and they would have been covered if it had happened at 1 o’clock in the morning. We do not want such a cliff edge. I will address another such issue in relation to other amendments.

I support the broad thrust of what the hon. Member for Glasgow East (David Linden) says, and it will be interesting to hear the Minister and perhaps the promoter of the Bill, my hon. Friend the Member for Thirsk and Malton, outline how they feel it should work so we do not have cliff edges. The whole point of the Bill is to have a position that reflects the devastating impact on people.

I am conscious that I have been on this theme for a little while, so it is probably time to move on to the fourth theme of my amendments. I touched on cut-offs in my response to the hon. Gentleman’s intervention, and I am also concerned about the cut-off created by a child’s 18th birthday. My amendments 6 and 24, and amendment 21 tabled by my hon. Friend the Member for Mid Dorset and North Poole, would change the definition of a child so it refers not only to sons and daughters aged under 18.

I think we would all feel that losing a child is hard at any age. Sadly, in my own family, my grandmother Beryl lost her son Mike. Mike was 59 and, by that point, my grandmother was in her late 70s, but the impact on her was just as strong as it would have been had Mike been 12 and had she been 30. Of course, due to her age, she did not need to worry about time off work—she was already a pensioner—but the impact on her was just as significant. She had lost her son.

The law does not view a person aged over 18 as a child. The law rightly views them as an adult—they are able to make their own decisions and are able to participate in life—but the parent still views them as their child. Sadly, my grandmother outlived not only her son Mike but the two children of her second husband, Cyril, my maternal grandfather. Both my mother and my uncle died before my grandmother, both passing away in their 50s. The impact on my grandmother was quite profound. My mother was the last of the three to pass away, four years ago. My grandmother said, “Here’s me sat here at 85 with all the children”—as she viewed them—“gone.”

It makes logical sense that a child aged under 18 should clearly be covered by the Bill. That is unarguable, and it is absolutely right that the provisions also apply to stillbirths.

[Michael Tomlinson]

My hon. Friend is making a powerful point. Does he agree that amendments 6, 21 and 24 would not widen the scope too greatly? His powerful example shows that many people in this situation will already be retired, so removing the age restriction of 18 does not widen the scope. When looking for a balance between employers and employees, which of course we must do, the amendments would not widen the scope too much.

[Kevin Foster]

The amendments would widen the scope a bit. An employee aged 61, 62 or 63 might lose a relative in their early 40s but, yes, by the point children are in their 50s or 60s, their parent is almost certain to have retired, or at the very least will only be in part-time employment. Monica Bulman, a nurse who recently retired in Torbay, did nearly 60 years in the NHS, which is remarkable. She was in her 80s when she retired.

For me, it is about the principle and about how the Minister and my hon. Friend the Member for Thirsk and Malton think employers should reasonably act in circumstances where, for everyone else, an adult has passed away but for the employee it is their child. The employee will remember their child as a baby, and that will have an emotional impact. I am concerned that we do not create a cliff edge at 18.

--- Later in debate ---

[Kevin Foster]

We are introducing the Bill to set out in law more clarity on what Parliament expects. We have touched on the fact that we should not create a set of rules that is too rigid, particularly on this 18th birthday issue. We do not want to end up with a bizarre situation in which a doctor putting on the death certificate “five minutes past midnight” means that the Bill will not apply, whereas it would apply had they put “two minutes to midnight”. I understand that we need to be specific, rather than relying on reasonableness, and we that we have to give some guidance. What each of us thinks of as a reasonable expectation in a particular moment will differ, as we are all individuals, with different views and in different circumstances. Some of our constituents rightly take the view that it is not unreasonable to wait a day or two for a reply to their email, whereas others who email at 11 pm will ask why they have not received a reply by 9 o’clock the next morning.

[Michael Tomlinson]

Yes, why not?

--- Later in debate ---

[Michael Tomlinson]

What a pleasure it is to follow the hon. Member for North Ayrshire and Arran (Patricia Gibson). She spoke with clarity and passion and from experience, and it is clear from other interventions that she has made a real difference to the Bill. I thank her for her words and for her work.

I pay tribute to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) for his work in guiding the Bill through the House, as well as my hon. Friends the Members for Eddisbury (Antoinette Sandbach) and for Colchester (Will Quince). I have piloted a presentation Bill through the House, and I got it all the way to Third Reading before it fell at the last hurdle, so I completely appreciate the fragile china that is a private Member’s Bill. I well remember my hon. Friend the Member for Eddisbury speaking in the very first Adjournment debate that I attended as a new Member of Parliament, and what a powerful experience it was to sit close to her. I think that I appeared in a number of leaflets distributed by my hon. Friend the Member for Colchester, because I was sitting just behind him when he was making one of his powerful speeches. That had a double benefit: me hearing his wise words and the people of Colchester seeing my face in his leaflet.

I will come back to amendments 24 and 25 in due course, because the hon. Member for North Ayrshire and Arran struck a raw nerve, and her words were very prescient. My hon. Friend the Member for Torbay (Kevin Foster) has spoken in great detail to all his amendments, which I have signed, so I do not feel the need to bang on at length, but I want to address two or three areas.

First, amendments 1 and 2 relate to primary care givers and grandparents. While those amendments may not be necessary because of how the Bill is drafted—it is clear that the Secretary of State will lay regulations and that there will be a definition of a bereaved parent—it is important that we debate in this place at some length what we expect that definition to include. At a time when we need more foster carers and adoptive parents, it is right that we use the term “primary care giver”, rather than just “parent”.

[Kevin Foster]

If someone adopts a child, they become the parent as far as the law is concerned. There are also foster carers or those who have taken in a child in certain circumstances—for example, when there are potential child protection issues. We must be clear that this applies to the primary care giver, not necessarily only the person who is legally or biologically defined as the parent.

[Michael Tomlinson]

My hon. Friend is absolutely right, as he often is. That is why I was so delighted to add my name to his amendment.

It is the same with grandparents. My hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) led a powerful debate in Westminster Hall just last week on the important role that grandparents play in the family. I agree with him that we should give far more credit to the possibility of grandparents having care for and access to grandchildren. That is why I was delighted to sign amendment 2, which shows the important role that grandparents do and should play in the family.

Let me move on briefly to one or two other amendments before I get to my main point. On amendment 23, I completely agree with the hon. Member for North Ayrshire and Arran about the need for flexibility. That is fundamentally right. We heard that from the hon. Member for Lincoln (Karen Lee), who quite rightly said that we do not know how grief will strike any of us—we just do not know. Some people will want to go to work immediately the next day. To be—dare I say it?—a little bit stereotypical, it is probably more often the man who will want to go straight back to work, throw himself into it, try to forget what has happened and put it to the back of his mind and just get on with life. That is not always, but quite often, the case. Flexibility is key.

We have talked before about the fact that these are minimum standards. We are not talking about good employers. These provisions are there to safeguard employees who are not fortunate enough to work for a good employer. I completely agree with the hon. Member for North Ayrshire and Arran and the thrust of amendment 22 on the need for flexibility.

That brings me to my main point, which is on amendment 21, which I have tabled, and amendments 6, 24 and 25. It seems entirely arbitrary and faintly ridiculous that we are saying that these provisions only apply when the child is up to the age of 18. It is simply not right to say that a parent acts any differently if their child is 17, 18 or 19. My brother died aged 24, and I know that it did not affect my parents any less or any more because he was 24, rather than 17 or 18.

I am incredibly proud of my brother. He used to claim that he was the first Oxford student to have been president of both the Oxford Union and the Oxford University Conservative Association since my noble Friend Lord Hague of Richmond. I think he was wrong in that, but he was very proud to claim that he did that double. Sadly, he died out in Beirut. He was on a gap year in Lebanon—he was not fighting—and was learning Arabic. There were increased tensions between Israel and Hezbollah in Lebanon, but he died of a very mundane cause: carbon monoxide poisoning. It was such an innocent tragedy, and it just should not have happened.

My father had just retired the summer before, and I know that had he still been in work, he would have found it incredibly difficult to carry on and to turn up to work the next day. My mother was still working. She had the good fortune of having a brilliant employer. She was a teacher—many of my family are teachers—and her headmaster effectively gave her that term off, so she had from April to September, because there are the long summer holidays. Imagine a scenario where a parent does not have a decent employer and does not have the protection of this law, and arguably the protection of these amendments as well.

I maintain, as did the hon. Member for North Ayrshire and Arran and my hon. Friend the Member for Torbay, that extending this beyond the age of 18 would not widen the scope that much. We have heard evidence that it may increase the burden fivefold. It is probably my fault, but I have not seen that evidence, and I want to know what it is based on. My instinct is greatly that the older the child, the more likely it is that the parent will be in retirement and therefore that this will not widen the scope. I ask the Minister to consider and perhaps set out in some detail the evidence why the burden would be so much greater if the definition of “child” was opened up to beyond the age of 18.

The final set of amendments that I want to touch on is amendments 9 to 11, in relation to the regulations. My hon. Friend the Member for Torbay is right that the regulations laid before Parliament by the Secretary of State in due course should not be onerous in relation to notice periods. We are talking about parents who are in an incredibly difficult position, at an incredibly sensitive time. We do not want to be shutting off people who are entitled to this parental leave just because they happen to have failed to give some minor notice, because the letter has gone missing or the email was not sent. We need to be sensitive at a time of grief.

[Kevin Foster]

My hon. Friend is making a very good point. Does he agree that the bonus of his amendment 17 is that someone could easily provide notice in any way; it would not have to be a handwritten letter delivered in a particular way? As long as a reasonable effort has been made to get the notice to the employer about the circumstances, that should be enough, regardless of exactly which form that notice took.

[Michael Tomlinson]

My hon. Friend is absolutely right. He has the benefit of being a lawyer and will therefore have studied notice periods and all the ancient texts about contracts and contractual arrangements. It is just nonsense to say that this should be construed that tightly and with that much regulation. We need reasonable notice periods, while being perfectly understanding of the situation that these parents are in.

I strongly support the Bill. I congratulate once again my hon. Friends for their work, and I look forward to hearing the responses from the Minister and my hon. Friend the Member for Thirsk and Malton to the points I have raised.