The Government has published its response to the House of Commons Women and Equalities Committee report on pregnancy and maternity discrimination.
Although many recommendations were rejected, the Government has committed to consider further and bring forward proposals to ensure that the protections in place for those who are pregnant or returning from maternity leave are sufficient.
Background
On 3 June 2015, the Women and Equalities Committee (Committee) was appointed by the House of Commons to examine the expenditure, administration and policy of the Government Equalities Office.
On 22 March 2016, the Equality and Human Rights Commission (EHRC) and Department for Business, Employment, Innovation and Skills (BEIS) published the final results of their research into pregnancy and maternity issues at work. The views of over 3,000 women and 3,000 employers had been sought for the research, making it the largest survey of its kind. Key findings included:
- 77% of women surveyed said that they had experienced negative or potentially discriminatory treatment;
- 55% of employers surveyed provided no guidelines, training or support to managers on managing pregnancy and maternity;
- 10% of women surveyed were discouraged from attending antenatal appointments by their employer; and
- 7% said they were put under pressure to hand in their notice.
The EHRC recommended six areas for action: leadership for change, improving employer practice, improving access to information and advice, improving health and safety management in the workplace, improving access to justice, and monitoring progress. Although the Government accepted some of the EHRC's recommendations, it rejected recommendations to improve access to justice by changing Tribunal fees (as it had not yet completed its own post-implementation fees review) and confirmed that it would not introduce a six-month time limit for Tribunal claims involving maternity or pregnancy rights.
Subsequently, the Committee launched an inquiry to look at the action being taken to address the problem. The inquiry focused in particular on whether the Government's current proposals are enough, or whether tougher action is required to ensure that pregnant women and mothers are treated fairly.
On 31 August 2016, the Committee published their report on pregnancy and maternity discrimination (the Report).
Report
The Report shows that the number of expectant and new mothers forced to leave their jobs has almost doubled since 2005 and suggests that "…with record numbers of women in work in 2016, the situation is likely to decline further unless it is tackled effectively now".
The Report calls for urgent action and leadership and registers concern that the Government's approach lacks urgency and bite, due to a lack of detail about the Government’s objectives, how and when it expects to achieve them, and how the effectiveness of its approach will be assessed. More particularly, the Report asks the Government to set out a detailed plan outlining the specific actions it will take to tackle the discrimination, underpinned by concrete actions to increase significantly compliance by employers and so improve women’s lives. In total, the Report made 21 recommendations, including the following:
- Strengthening the obligations on employers to assess the health and safety risks for new and expectant mothers, including the provision of model risk assessments by sector and occupation.
- Extending maternity-related rights, including the right to paid time off for antenatal appointments, to workers.
- Protection from redundancy until six months after a return to work.
- Assurances that rights and protections would not be eroded, given the uncertainty following the vote to leave the European Union.
- Giving women access to information about their maternity rights sooner in a booklet.
- Increasing the three-month limit on taking cases to The tribunal to six months.
- A substantial reduction in the £1,200 fee for women taking pregnancy-related discrimination cases to an Employment Tribunal.
- Repeating the research conducted by the EHRC by the end of 2020, with a view to monitoring pregnancy and maternity discrimination and monitoring how successfully it is being tackled.
On 26th January 2017, the Government published its response to the recommendations set out in the Report (the Response).
Response
In the Response, the Government said that it takes the issue of pregnancy and maternity discrimination very seriously and is committed to addressing this form of discrimination. Specific comments in relation to the key recommendations are set out below.
Recommendation: Strengthening the obligations on employers to assess the health and safety risks for new and expectant mothers, including the provision of model risk assessments by sector and occupation.
Response: The Government noted that similar recommendations from the EHRC have already been taken forward with the Health & Safety Executive (HSE) with the aim of improving guidance and communication with employers over the carrying out and reviewing of risk assessments and raising employer awareness of health and safety obligations.
Therefore, following these recent changes to HSE guidance, the Government said that it did not believe this new set of recommendations would bring about the improvement required, as the law is already sufficient in this area (and sector-specific model assessments are not necessary). However, the Government committed to keep the situation under review and focus instead on raising awareness and promoting guidance as a more effective way of bringing about the changes needed.
Recommendation: Extending maternity-related rights, including the right to paid time off for antenatal appointments, to workers (e.g. temporary and agency staff and those on zero-hours contracts).
Response: The Government commented that Matthew Taylor MP is currently leading a six-month review into employment practices in the modern economy (the Taylor Review), and has been tasked with considering ways to ensure that the regulatory framework surrounding employment and the support provided to businesses and workers is keeping pace with changes in the labour market and the economy (e.g. maintaining flexibility while also supporting job security and workplace rights and whether new employment practices can be better used as an opportunity for underrepresented groups). The Government said that that it would ensure the position of maternity rights for workers will be considered as part of the Taylor Review.
Recommendation: Protection from redundancy until six months after a return to work.
Response: The Government referred to the EHRC's research which suggests that 6% of all mothers were made redundant, 2% of all mothers were made redundant on their return from maternity leave and around one in nine mothers (11%) felt forced to leave their jobs. The Government commented that this was "clearly unacceptable" and that it "will consider further and bring forward proposals to ensure that the protections in place for those who are pregnant or returning from maternity leave are sufficient".
Recommendation: Assurances that rights and protections would not be eroded, given the uncertainty following the vote to leave the European Union.
Response: The Government provided assurance that withdrawal from the EU will not lead to a diminution of employment rights and emphasised that it would not "roll back on the rights that British people are entitled to in the workplace, which are currently granted by EU law", including protecting the rights of pregnant women and new mother.
The Government noted that maternity leave and pay are important rights where the UK has set its own high standards, going significantly beyond the EU minimum requirement of 14 weeks of paid maternity leave by offering up to 52 weeks of Maternity Leave and up to 39 weeks of Statutory Maternity Pay or Maternity Allowance (subject to eligibility). In particular, before the Pregnant Workers Directive was implemented, the UK already offered more than the EU minimum and has gone significantly further since then by extending maternity rights further and introducing Shared Parental Leave and Pay.
Recommendation: Giving women access to information about their maternity rights sooner in a booklet.
Response: The Government said that it was in favour of improving information for new and expectant mothers but considered that it would be better to provide information digitally.
Reference was made to the "Maternity Transformation Programme", launched in July 2016, where NHS England is working with partner organisations to implement and develop a digital maternity tool that will bring together the best digital services and online information from the NHS and other organisations including maternity-related employment rights. It is envisaged that the tool will use a combination of mediums such as video, email and social media to support accessibility needs and broaden reach and that pregnant women and new mothers will be able to access and print out information to give to their employers on maternity-related employment rights and employers’ obligations.
Recommendation: Increasing the three-month limit on taking cases to the Tribunal to six months.
Response: The Government noted that the EHRC's research does not suggest that the three-month time limit for bringing a claim to an Employment Tribunal was a barrier (only 4% of mothers had considered bringing a claim but had not done so and there was no evidence that this decision was related to the three-month time limit).
Nonetheless, the Government acknowledged that the Committee had heard from several witnesses who raised concerns about the time-limit. In response, the Government noted that Employment Tribunals already have a broad power to extend the time in which a case can be heard, where it is just and equitable to do so. However, such cases need to be considered on an individual basis and claimants need to demonstrate to the tribunal why an extension is necessary.
The Government will consider what further guidance can be provided to parties about the existing flexibilities, in order to clarify the position and respond to the concerns raised to the Committee, and will keep this under review.
Recommendation: A substantial reduction in the £1,200 fee for women taking pregnancy-related discrimination cases to an employment tribunal.
Response: The Government's response was to cross-refer to the conclusion to its review of Employment Tribunal fees.
Recommendation: Repeating the research conducted by the EHRC by the end of 2020, with a view to monitoring pregnancy and maternity discrimination and monitoring how successfully it is being tackled.
Response: The Government said that it had already accepted the same, earlier, recommendation from the EHRC and agreed that it was important to track mothers’ experience of their treatment in the workplace.
The Government will seek to undertake representative research into pregnancy and maternity-related discrimination and disadvantage among mothers and employers in Great Britain using similar methodology to that carried out in 2014-15, so that it will be "representative of mothers and employers in Great Britain and will enable comparison to be made of results over time".
Comment
It has been reported that Maria Miller, Chair of the Committee, welcomed the Government's intentions but expressed disappointment that there was not more “energy and resolve” in tackling the issue, suggesting that the Response was a missed opportunity for the Government to demonstrate the urgency and bite on this issue that Committee found lacking when they published the Report in August 2016.
Nevertheless, although many of the Report's recommendations were rejected, the Government did commit to consider strengthening women's rights in relation to pregnancy, maternity and redundancy. In addition, the Taylor Review into employment status and the modern workplace is expected mid-2017 and is expected to address the issue of strengthening maternity protection for workers. Therefore, further developments are expected in this area.
