Children and Families Bill

Memorandum submitted by Equality and Human Rights Commission (CF 66)

 

Children and Families Bill 2012-13

 

House of Commons, Committee Stage Briefing

Part 6: Statutory rights to leave and pay

Part 7: Time off work: ante-natal care etc

Part 8: Right to request flexible working

Contents:

1. Part 6: Statutory rights to leave and pay 3

 

Commission’s analysis 3

Evidence 4

Recommendations 5

2. Part 7: Time off to attend antenatal appointments 7

 

Commission’s analysis 7

3. Part 8: Right to request flexible working 7

Commission’s analysis 8

Recommendations 8

4. Role of the Equality and Human Rights Commission 9

The Commission has issued a separate briefing on:

· Part 3: Children and young people in England with special educational needs.

This is available from our website at: http://www.equalityhumanrights.com/legal-and-policy/parliamentary-briefings/

Part 6: Statutory rights to leave and pay

 

Introduction


Part 6 of the Children and Families Bill 2012-13 relates to:

· Clause 87: shared parental leave for qualifying parents , and

· Clause 89: provision to introduce statutory shared parental pay.

Commission’s analysis

The Commission has analysed the above clauses in light of the requirements of the Equality Act 2010 and the Human Rights Act 1998 and concludes that the changes are in accordance with these Acts .

In particular, our analysis suggests the proposals will not :

· reduce the legal protection from pregnancy and maternity discrimination ,

· disproportionately impact on any protected groups , or

· m ake UK employment and equality law incompatible with EC law

The Commission notes some important European case-law developments that mark a growing recognition of the importance of shared parental leave for the advancement of gender equality. The Court of Justice of the European Union has condemned the perpetuation of "a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties." [1] The European Court of Human Rights has also found that denial of parental leave to a father on an equal basis to the mother is a violation of article 14 (equality), in conjunction with article 8 (private and family life) of the European Convention of Human Rights. [2]

The Commission's analysis suggests the intention to improve choice for parents is in accord with the requirements of the Equality Act 2010 and the Human Rights Act 1998. However, the Commission finds little evidence that in practice proposals will reduce inequalities linked to caring responsibilities for women at work, or support greater take up of caring opportunities for men as explained below.

Although the government's proposals extend the existing system of transferable maternity leave (available currently after 20 weeks of maternity leave), an opportunity has been missed to progress towards:

· a system of flexible, as opposed to shared, parental leave, and

· pay in which mothers and fathers each have their own exclusive entitlement.

Evidence

The Commission's first Working Better report in 2009, 'Meeting the Changing Needs of families, workers and employers in the 21st century' [3] , found that the entitlement for women to a long period of leave was perpetuating inequality in the workplace. Women, as the main carers with rights to maternity leave and pay, were experiencing high levels of pregnancy and maternity discrimination.

The Equal Opportunities Commission's 2005 investigation into pregnancy and maternity discrimination [4] estimated that almost half the 440,000 pregnant women in Britain each year experience some form of disadvantage at work, simply for being pregnant or taking maternity leave. It also suggested 30,000 are forced out of their jobs [5] .

Our analysis suggests that with the 52 week entitlement remaining with mothers unless and until shared parental leave is triggered, there will be nothing to drive change in the negative attitudes of some employers to women of child-bearing age.

The Commission’s own evidence [6] indicates that fathers want to spend more time with their children and are less focused on work than in past generations. For mothers, the motivation to work in order to sustain their career is as strong as it is for fathers.

When asked 'what would help your family achieve a better balance between work and children?', fathers' top answer was ‘more financial support from government for paternity and parental leave'. The current proposal which retains the existing two weeks of paternity leave and allows a transferable period of parental leave at a flat rate is likely to be too low to be an incentive or to support sharing, because of the drop in pay most men will incur.

By the government's own estimates, just 2-8% of fathers will take up the flexible parental leave option, which is identical to the estimated take-up of the current additional paternity leave provisions. [7]

The Working Better report [8] set out proposals based on evidence of the best practice in Europe to encourage greater parental choice and particularly fathers’ involvement. International policies that achieve the greatest uptake combine:

· a non-transferable allocation of leave for fathers,

· an incentive to take it (for example, a ' use it or lose it ' condition) ,

· at least 60-80 % replacement of fathers’ lost income , and

· fathers’ leave as an add-on to mothers’ leave, providing additional support for the family, rather than eating into mothers’ entitlement.

This is acknowledged in the b ill, with the economy and additional cost being cited as the barrier to greater change , and an intention to move to an improved offer in the future. [9] It was the basis for the original proposals in May 2011 welcomed by the Commission , ‘to grant a period of leave for fathers, available only to them on a use it or lose it basis’. Under current proposals paternity leave and pay is to remain at only two weeks , paid at the flat rate, to qualifying fathers.


Recommendations

To ensure more equal access to and take up of parental leave , the Commission's analysis suggests consideration should be given to the following proposals :

· Access to shared parental leave to become a day-one right with no service requirement , which would increase eligibility to share leave and reduce complexity for employers and employees

Proposals currently restrict shared parental leave and pay to families where both couples are economically active and where each qualifies in their own right for shared parental leave and pay, with 26 weeks ' service prior to childbirth. Access to shared parental leave and for fathers to take time off for the birth should be universal and not have an earnings or service re quirement. This will remove uncertainties and reinforce the intention of the regulations to promote shared parental responsibility.

· New leave to be taken flexibly to enable part time work and part time parental pay

This was included in the original consultation. This would be particularly welcomed by low income parents to support a phased return to work after leave, and by employers who could allow a trial of different working patterns for parents who did not wish to return to work full time. The final proposals which allow leave to be taken in weekly blocks only are unlikely to appeal to many employees or employers.

· Effective employment protection for all workers taking maternity, paternity and parental leave

Despite the existing employment protection provisions for paternity and parental leave, there is evidence that men are deterred from taking leave because they fear adverse consequences at work. It is important, for the compliance with equality and human rights enactments, that there is no regression in standards of employment protection for pregnant women, new mothers and fathers if they tak e leave entitlement. [10]

· More clarity on how enhanced maternity pay would dovetail with statutory sharing arrangements

Many employers provide enhanced contractual maternity pay , but it is often conditional on the mother returning to work for a certain time.  No guidance has yet been issued by g overnment on whether workplaces that provide enhanced contractual maternity pay will be obliged to match this with parental leave payments .

· R eview the decision not to reserve rights for fathers , before the 2018 r eview date

The g overnment intends to make arrangements for working parents who do not meet the qualifying requirements to receive statutory payments. However, this provision will not be introduced until 2018 at the earliest. The Commission's analysis suggests this decision should be reviewed at the earliest opportunity and more parents are brought into the scope of the regulations.

Part 7: Time off to attend antenatal appointments

 

Part 7, clause 97 of the bill introduc es unpaid time off for fathers (and partners) to attend two antenatal appointments with their pregnant partners .

Commission’s analysis

The Commission has analysed proposals in light of the requirements of the Equality Act 2010 and the Human Rights Act 1998 and concludes that the changes are in accordance with provisions within the legislation .

This is unpaid leave and it should be noted that many employers may already be offering leave with pay to attend appointments .

The Commission analysis shows it would be appropriate for fathers to have time off to attend whatever number of antenatal appointments are necessary particularly in cases where there are concerns for the health and wellbeing of mother and/or baby .

Part 8: Right to request flexible working

 


Part 8 of the bill includes:

· Clause 101 remov ing the requirement that an employee must have parental or caring responsibilities to be eligible for the statutory right to request flexible working.

· Clause 102 remov ing existing procedures by which employers should respond to a request for flexible working, with a duty to respond ' reasonably ' to requests and within a three month timetable.

Commission’s analysis

The Commission has analysed proposals in light of the requirements of the Equality Act 2010 and the Human Rights Act 1998 and concludes that the changes are in accordance with provisions within the legislation . Our analysis supports the government’s intention to implement its commitment to extend the right to request flexible working to all employees.

The Commission notes that the requirement that an employee must work for an employer for 26 weeks before they have a right to request remains unchanged. Many people – for example some lone parents or carers – are unable to enter work on a full time basis and then ask to change to flexible or part time working hours . Too few jobs are advertised on a flexible or part time basis. This results in talent being wasted and employers not recruiting from the widest possible pool of candidates . [1]

Recommendations

To improve the flexible working arrangements proposed in the b ill, the government may consider :

i. I ntroducing adequate protection for employees . In some circumstances, particularly for employers who lack formal system procedures to deal with requests to work flexibly, the statutory process provided a consistent framework for the making and handling of requests. This clearly had benefits for employees working for employers who lacked a formal system to deal with requests for flexible working

ii. The duty to respond should be within a reasonable time period for both the individual and employer. The proposal to respond reasonably to requests ' within three months ' may be too long a period for someone who se circumstances chan g e suddenly beyond their control, for example they are re q uir ed to look after an elderly parent.

iii. ACAS is drawing up a statutory Code of P ractice for employers to identify what it means to act ' reasonably ' . The Code should continue to provide opportunities for both sides to meet and discuss a flexible working request, for the employee to be accompanied to any meeting, and for an internal appeal process to be established.

iv. The 26 week qualifying period for making a request should be removed. Those seeking flexible working should be able to make a request at the recruitment stage.

 Role of the Equality and Human Rights Commission

The Equality and Human Rights Commission is a statutory body, established under the Equality Act 2006. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.

The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.

The Commission has a power under section 11 of the Equality Act 2006 to advise government on the effectiveness of equality and human rights enactments and the likely effect of a proposed change of law.  In addition, as a UN accredited National Human Rights Institution, the Commission is required to comply with the Paris Principles, which include: 'Advising Government, the Parliament and any other competent body on specific violations, on issues related to legislation and general compliance and implementation with international human rights instruments'. 

March 2013


[1] ECJ case C-104/09 Roca-Alvarez v Sesa Start Espana ETT SA (2010) para 36)

[2] Konstantin Markin v Russia 30078/06, Strasbourg 7/10/2010; case referred to the Grand Chamber .

[3] http://www.equalityhumanrights.com/uploaded_files/working_better_final_pdf_250309.pdf

[4] http://www.equalityhumanrights.com/uploaded_files/eoc_pregnancygfi_summary_report.pdf

[5] http://www.equalityhumanrights.com/uploaded_files/eoc_pregnancygfi_summary_report.pdf

[6] Work and Care: a study of modern parents. EHRC 2009 http://www.equalityhumanrights.com/uploaded_files/research/15._work_and_care_modern_parents_15_report.pdf

[6]

[7] Department for Business, Innovation and Skills, November 2012

[7] http://www.bis.gov.uk/assets/BISCore/employment-matters/docs/M/12-1268-modern-workplaces-response-flexible-parental-leave-impact.pdf

[7]

[8] http://www.equalityhumanrights.com/uploaded_files/working_better_final_pdf_250309.pdf

[9] Modern workplaces: Government response on flexible parental leave. November 2012

[9]

[9] http://www.bis.gov.uk/assets/BISCore/employment-matters/docs/M/12-1267-modern-workplaces-response-flexible-parental-leave.pdf

[9]

[10] Equality and Human Rights Commission - Research report: 15 Work and Care: a study of modern parents. 2009’

[10] http://www.equalityhumanrights.com/uploaded_files/research/15._work_and_care_modern_parents_15_report.pdf

[1] EHRC modern workplaces consultation response August 2011

[1] http://www.equalityhumanrights.com/legal-and-policy/consultation-responses/response-to-consultation-modern-workplaces/

Prepared 19th April 2013