Memorandum by submitted the Mothers' Union (E 41)

 

Mothers' Union welcomes many of the aspirations of the Bill and the overall aim of promoting justice within society. In particular, it welcomes how the Bill seeks to address discrimination against workers who are pregnant or on maternity leave, and close the gender pay gap, including prohibiting the use of 'gagging clauses' relating to pay. However, Mothers' Union does have some concerns that the Bill may not address these issues as successfully as it could do, and that it may potentially create further difficulties.

 

1) Part 2 Chapter 2: Pregnancy and maternity discrimination: non-work and work cases

 

Sections 16 and 17 state that "a reference to a woman being treated less favourably is a reference to her being treated less favourably than is reasonable". Mothers' Union is concerned by the insertion of "than is reasonable" - this could create a loophole for discriminatory practice to be legitimised under the guise of "reasonableness". This is inconsistent with the aspirations of the Bill and diminishes current protection for women who are pregnant or on maternity leave, where discrimination is not permitted in any circumstances.

 

Ü Mothers' Union recommends removing "than is reasonable".

 

The Committee should also reflect the European Commission's proposals to amend the European Pregnant Workers Directive (Directive 92/85/EEC)[1]. The Commission proposes to extend the rights and strengthen protection of workers who are pregnant, breastfeeding or on maternity leave, and consistently stresses the need for equal treatment regardless.

 

· Article 10 of the Directive would be amended, from prohibiting the actual dismissal of pregnant workers/ workers on maternity leave to include the making of preparations to dismiss such workers as unlawful. Such preparations would include making a decision to dismiss, notifying a worker of their dismissal or searching for and finding a replacement employee. (See Nadine Paquay v Société d'architectes Hoet + Minne SPRL[2]) The European Commission is clear that only in exceptional circumstances that were not related to a pregnancy or maternity leave this prohibition would not apply.

 

· Less favourable treatment, of any sort, related to pregnancy or maternity leave would be counted as discrimination in the amended Directive.

 

Ü Mothers' Union recommends scrutiny of the Equality Bill in the context of these European proposals to ensure compatibility.

 

2) Part 5 Chapter 3: Gender pay gap information

 

Mothers' Union is pleased to see that the Bill seeks to resolve the problem of unequal pay, especially as efforts over the last 40 years have failed to close the gender pay gap. However, it has a number of concerns about section 73 and the requirement to publish gender pay audits.

Exempting small and medium size private enterprises (i.e. those with fewer than 250 employees) from any requirement to publish information on pay (section 2a) places the interests of business and the economy above equal treatment. Although legislation should be kept practicable, this exemption requires gender equality only when it is 'convenient' or economically viable. However, Mothers' Union members are sympathetic to the concerns of small businesses (those with, say, fewer than 50 employees) and are concerned that legislation should not place a disproportionate onus on them.

 

Ü Mothers' Union recommends exempting small businesses only (those with fewer than 50 employees) from a requirement to carry out pay audits. However, such employers should not be exempt from addressing gender pay inequalities altogether and should be consulted on the simplest way in which to ensure pay discrimination does not occur.

 

Ü On balance, Mothers' Union believes that gender pay audits should be compulsory for all private and public sector employers with over 50 employees, and required for employers with under 50 employees where an Employment Tribunal requires it.

 

The regulations relating to descriptions of employers and employees and calculating the number of employees etc would need to be clearly defined, with no loopholes for employers to unscrupulously exempt themselves from producing pay audits. For example, in the case of public sector employers, would a local authority be defined as one employer, or would each department (social services, housing etc) be considered as one employer? The Employment Tribunal should be empowered at the request of any affected employee to order the employer to disclose information to it in confirmation of its "small business" status.

 

Mothers' Union recommends that:

Ü An 'employee' should be defined according to the Labour Force Survey description, as someone who is paid for at least 1 hour's work per week; has their National Insurance paid directly from their wages; is in a government-supported training scheme; or is carrying out unpaid work in a family business. An employee should be classed an employee whether they have a written or a verbal contract, as under current law.

 

Ü An 'employer' should be defined as the person or organisation by whom the employee or worker is employed.

 

Ü The Bill must also clarify the position of agency workers and contract staff; and the obligations of UK employers with employees based outside the UK.

 

Ü The descriptions of information required on pay should be kept as simple as possible.

 

In 2008, the Government committed itself, at the UN Commission on the Status of Women, to establishing gender-sensitive policies and guidelines for employment practices, and to resource efforts to eliminate wage inequalities adequately. The sections discussed above attempt to do this, but need strengthening to ensure the Bill goes beyond rhetoric about achieving gender equality within the work place.

 

It must further be borne in mind that steps taken in pursuit of the laudable aim of attempting to eradicate discrimination against pregnant women may exacerbate the disparity with the partners (male or female) of pregnant women (ie comparatively short length of Paternity Leave and Pay), especially where the couple would prefer the partner to become the primary carer.

 

June 2009

 

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[1] See http://www.berr.gov.uk/consultations/page50579.html

[2] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0460:EN:HTML