Legislative and Policy Committee: Working Party Guidelines

(At Annex 2 there is an example of the points made at paragraphs 3-13, excluding paragraph 8)

1. Each member of a working party will be allocated specific issues to consider and will prepare a draft response to those issues within the agreed timetable. 

2. All draft responses (from and including the first draft) should be submitted to the Chair(s) of the working party by email. 

3. Contributors must ensure that all comments are apolitical. This may mean that where aspects of the consultation involve pure policy considerations, it is not appropriate for the working party to respond to particular questions and instead confine its response to certain areas.  

4. Contributors should be in plain English so as to achieve an easy to read style.  Long sentences should be avoided. 

5. Language used should not be legalistic.  Rather than "We submit that", state "In ELA's view ..." 

6. Comments on proposed legislation should be confined to how the legislation should work and should be of practical significance.  ELA does not provide suggested draft wording for legislation. 

7. Each section should bear the heading of the section of the Consultation Paper or question referred to, e.g. "Chapter 1" .  If that section has a longer heading, that should be included e.g. "Chapter 1" :  "Racial Equality as a permanent priority and obligation for Government and all public bodies" .  The heading should be in bold type.  Each section should be numbered "1", "2" etc, and sub- sections "1.1", "1.1.1".  Thereafter subsections should be numbered (i), (ii) etc. 

8. A summary of the key points will appear at the beginning of each ELA paper that is longer than 10 pages.  Contributors should therefore summarise their contribution, in bullet point form, before setting out their more detailed commentary. 

9. After the key points, contributors should summarise the point that they are commenting upon before setting out the commentary.  If commenting on more than one issue this approach should be adopted for each issue. 

10. On occasion, there may be a divergence of views among members of the working party. In such cases, different views may be counterposed by saying e.g “some members felt that X represented difficulties... whilst other members considered such a problem could be avoided by....” It is preferable to balance opposing views rather than say stating the majority viewpoint only.  

11. Cases referred to should be in italics, not underlined.  There is no need to refer to the facts of cases. 

12. The following abbreviations should be used:- 

"Employment Appeal Tribunal" - "EAT" 

"The Employment Lawyers' Association" - "ELA" 

Other abbreviations will be agreed at the initial meeting of the Working Party. 

13. "Employment Tribunal", "Applicant" and "Respondent" are all to have initial capitals.  Other uses of upper and lower case will be agreed at the initial meeting. 

14. The font should be in Times New Roman, Regular Style, Size 12. 

15. The names and firms of the members of the working party will be listed at the end of the paper. 

16. Working party members should be aware that ELA responses are published. Members who contribute to the responses are listed at the end of the ELA submission. The views expressed within the responses are not attributed to individuals. However, if there are particular aspects of the response which might cause a member difficulties, even in a general attribution, they should raise this with the Chair of the working party to ensure that care is taken in how their views are attributed in the response.  

Annex 1 

1. INTRODUCTION 

The Employment Lawyers Association ("ELA") is a non-political group of specialists in the field of employment law and includes those who represent Claimants and Respondents in the Courts and Employment Tribunals.  It is therefore not ELA's role to comment on the political merits or otherwise of proposed legislation, rather to make observations from a legal standpoint.  ELA's Legislative and Policy Committee is made up of both Barristers and Solicitors who meet regularly for a number of purposes including to consider and respond to proposed new legislation. 

A sub-committee was set up by the Legislative and Policy Committee of the ELA under the chairmanship of [                  ] of [                            ] to consider and comment on the [              ] consultation paper.  Its report is set out below.  A full list of the members of the sub-committee is annexed to the report. 

[The Government has invited views on a wide range of proposed legislative changes.  Our comments are divided according to the chapter arrangement in the consultation paper.] 

Annex 2 

4. FAMILY FRIENDLY POLICIES 

4.1 Maternity Leave 

4.1.1 At paragraphs 5.14, 5.17 and 5.19 to 5.21 of the Fairness at Work White Paper the Government proposes: 

(i) that basic maternity leave be extended from 14 weeks to 18 weeks; 

(ii) 

that the notification provisions in relation to maternity leave e simplified; 

(iii) 

that the right to extended maternity leave should apply after one year; 

(iv) 

that a woman's contract, whilst she is on maternity leave, should continue during her absence. 

4.2 In ELA's view the maternity notification provisions are not, of themselves, complex and have worked satisfactorily for a number of years.  A recent problem has arisen, however, as a result of the Court of Appeal's ruling in the consolidated appeals Crees v Royal London Mutual Insurance Society Limited and Green v Kwik Save Stores Limited [1997] ICR 629.  This case (which we understand is being appealed to the House of Lords) decided that the employee is deemed physically to return to work on the date she serves a notice confirming that it is her intention to return to work pursuant to Section 82 of the ERA.  The general position seems to be clear following that case; once a woman is regarded as having returned to work the provisions of her contract (which will now be deemed to continue, in any event, as a result of the Government's proposals) will revive.  It would seem right to conclude that these contractual obligations do not, in fact, come into effect until the notified day of return rather than the date notice is given but there is a whole question now to be resolved as to how a woman must be treated between those dates. 

4.3 Clarification on whether the contract of employment continues during the period of extended maternity absence is to be welcomed in order to provide clarity in a situation which has been the source of substantial litigation. 

4.4 The potential area of difficulty is highlighted in the proposal itself in that it has to be decided what terms will apply during the period of maternity.  The proposal states that the contract could specify what terms applied during the absence from work.  Is there, however, going to be a "minimum" content, or is it open to the employer to effectively deprive the employee of all their rights during a period of absence?  Is there to be a "core" of rights which have to remain?  If so, what are these rights? 

4.5 The proposal states that any terms must not be "discriminatory".  Is there going to be specific provision made with regard to "discrimination", or is it going to be entirely a matter of referring back to the principles of the Sex Discrimination Act 1975 and the Equal Treatment Directive? 

4.6 If specific provision is to be made over and above the protection provided in the Sex Discrimination Act 1975, the practical implications have to be considered carefully.  How will it be established that the deprivation of rights is, in fact, discriminatory?  It is impossible to see how any effective comparison can be made with a male comparator for obvious reasons.  The question will therefore centre upon whether the treatment is discriminatory per se, which in turn will depend on the rights which reside with the woman during the period of absence as set out in the provisions themselves. 

4.7 The proposal specifically recognises the effect that it will have on smaller employers.  The question will have to be addressed whether or not there are going to be any exemptions for smaller employers, although this is a policy matter and ELA makes no recommendation in this regard, one way or the other.