Pregnancy and maternity discrimination Contents

2Improving access to information and encouraging a change in attitudes

72.As set out in the Background, the EHRC’s recommendations centre around raising awareness and increasing access to information as the primary means of tackling the discrimination evidenced in the BIS/EHRC research. The Government have accepted or accepted in principle most of those recommendations, but the approach being taken forward has been criticised as being too weak. Rosalind Bragg of Maternity Action told us that the EHRC’s recommendations were “not sufficiently strong to make a significant impact on the very high rates of pregnancy discrimination.” She went on:

[T]he Government’s response, which accepts in principle some of the recommendations and rejects others, is unlikely to make inroads to any significant degree on the scale of pregnancy discrimination. If the Government are serious about ending pregnancy discrimination or even moving back to the situation that existed in 2005, we would need to see a new, strong, well-resourced set of recommendations that go considerably further beyond the plan of action that we currently have to hand.86

In this chapter we examine the proposed approach and question whether it will really be enough to bring about the changes that are required.

Improving women’s access to information

How easy is it to access information now?

73.During a visit to Portsmouth on 12 May, we heard directly from new and expectant mothers. There was wide agreement among participants that information about pregnancy and maternity rights at work could be easier to access. Several women told us that they had tried to find out about their rights or about their employer’s maternity, flexible working and other relevant policies, but that it had been difficult for them to do so. For example, one woman had not realised that she should have accrued annual leave while on maternity leave, and another had not known about childcare vouchers.87

74.We also received evidence from Sarah Barton, Chair of Portsmouth and South East Hampshire Maternity Services Liaison Committee, who facilitated two focus groups with local women to discuss these issues. Only one woman out of the 17 who took part “could say that she was confident in knowing her rights whilst pregnant and returning to work”, and she was a human resources manager. The other seven women in her group had not known that they were entitled to paid time off for antenatal appointments. The group felt it important that employers should have policies relating to pregnancy and maternity and that such information should be easily accessible by staff.88

Getting the right information to women sooner

75.A key conclusion that came out of our Portsmouth visit was that there was a need for better and earlier signposting to help women find information about their rights.89 This view was supported in much of the evidence we received.90 Both of the Portsmouth focus groups said that they would like to receive a comprehensive guide with advice on their rights and employers’ responsibilities regarding pregnancy, maternity and returning to work. Breastfeeding, parental leave, keeping-in-touch days and the rights of self-employed people, temporary workers and contractors were seen as particularly important issues to include.91 Suggestions from our Portsmouth visit for making it easier to access information included: having all the relevant information in one place, such as a website and phone line; advertising during relevant TV programmes; and using simpler language, with less legal terminology.92

76.The EHRC recommended that the Government should use existing information channels and mechanisms such as health professionals and MAT B1 forms to deliver information to pregnant women and employers. However, Scarlet Harris of the TUC told us that this was “too late, as that is after 20 weeks and women need to know about simple things like when they need to tell their employer and when the employer needs to do a health and safety risk assessment.”93 Louise Handley of the London School of Economics and Political Science (LSE) agreed that there was “no substitute for information being placed directly in the hands of the individual at the earliest possible stage.” She also highlighted the valuable role that unions could play in providing information to individuals.94

77. Women who attended the informal visit and focus group discussions agreed that information should be given to women early in their pregnancy at their booking-in appointment with the midwife.95 Maternity Action, NCT and the TUC also suggested that information should be given at this point, and that it should include a tear-off sheet for women to give to their employer.96 Maternity Action stated:

All women should be given a hard copy leaflet at their first antenatal appointment, which briefly outlines their maternity rights at work and signposts to key sources of information and advice. The leaflet should include a tear-off sheet for women to give to their employers, which similarly lists key legal obligations and signposts to key sources of information and advice.97

78.Maternity Action supported the EHRC’s recommendation that health professionals be engaged in delivering information to women and employers. Maternity Action said it was “imperative” that midwives, maternity support workers and health visitors were able to provide “basic information on rights at work as well as to signpost women to further sources of advice and support.” It suggested that the Government “must invest in the training of these front-line workers to ensure they deliver this.”98

79.In response to these recommendations, the Government agreed to take steps to ensure that the information provided in the MAT B1 form meets user needs, including signposting to further information on employment rights that are relevant to pregnant women. It also agreed to look at the guidance for healthcare professionals on to ensure that they included awareness of pregnancy and maternity-related employment rights, such as the right to time off to attend antenatal appointments.99

80.Sue Coe told us that the EHRC had hoped for more from the Government’s response on these recommendations. She suggested that despite the positive commitment to using the MAT B1 form to deliver information, there was still a gap in the Government’s approach in terms of using health professionals to give women information early in their pregnancy. She supported the idea of giving women a “creditcardsized bit of information … on their bookingin appointment … to equip them to have informed and positive conversations with their employer, when they inform them that they are pregnant.”100

81.We welcome the Government’s commitment to using the MAT B1 form to disseminate information to women and employers about pregnancy and maternity-related rights and responsibilities. However, many women and employers will need this information much sooner. Women should be provided with a comprehensive handout, such as a booklet or leaflet, containing basic information about their pregnancy and maternity-related employment rights early in their pregnancy—ideally, at their booking-in appointment. This handout should include a tear-off sheet or card for women to give to their employers containing basic information about employers’ responsibilities to new and expectant mothers. Both the employer and the employee information should include signposting, such as web addresses, telephone numbers and QR codes, to further, more comprehensive, sources of information and advice. The Government should ensure that this system is implemented within the next year.

82.Front-line health professionals involved in the care of new and expectant mothers have a key role to play in helping women to access information about their rights. These workers should receive training and support to ensure that they are able to provide basic advice about pregnancy and maternity-related employment rights and signposting to further sources of information and advice. The Government should ensure that such training and support begins within the next year.

Accessing more focused advice

83.A number of witnesses suggested that while the provision of general information was useful, women also needed to be able to access one-to-one advice if they had a grievance or wanted to know whether they had grounds to make a complaint or take further action against their employer.101 This view is supported by the BIS/EHRC research finding that that lack of information about their rights was one reason why women who had experienced a negative or possibly discriminatory experience did not raise the issue with their employer or line manager either formally or informally.102 This issue is discussed further in the Access to justice chapter.

Improving employers’ access to information

84.The BIS/EHRC research findings highlighted gaps in employers’ awareness of women’s pregnancy and maternity rights and of their obligations towards pregnant employees and new mothers. The research also showed that many employers were not looking for the information they needed to fill those gaps. For example:

Smaller businesses

85.NCT highlighted the importance of “good quality, clear and accurate information for employers”, pointing out that “many small and micro businesses will have never had to deal with a pregnancy in the workplace before”.104 Sarah-Jane Butler of Parental Choice, a small business, told us that the information was there for those employers who sought it, but also advocated providing employers with information about their responsibilities early in the employee’s pregnancy. She said:

As a small business and all the way up, if you want to know how to deal with your employees who are pregnant or on maternity who want flexible working, there is plenty of information out there. The internet is full of information; the Government’s website, for one, is full of information. It is a bit of a cop-out to turn around and say, “I did not know”. Lack of knowledge is no excuse to following the law, as we all know, but there probably needs to be more direct, in-your-hand provision of information to both employers and employees.105

86.Citizens Advice acknowledged that many sources of information were available to employers, but suggested that small and medium-sized employers (SMEs) in particular could “struggle with how to find the most relevant advice and information”.106 Similarly, Louise Handley of the LSE noted that larger employers often had human resources departments to filter information for managers as well as trade union representatives to advise individuals, whereas smaller employers “do not have access to those kinds of resources”.107

Practical support for SMEs

87.Citizens Advice made a number of suggestions for practical ways in which SMEs could be better supported in accessing information. These included the provision of templates and top tips to simplify and demystify pregnancy and maternity issues, and information about good recruitment and equality practices. It also suggested that some of this information could be provided alongside PAYE and VAT information for new traders and businesses.108

88.When we asked the Minister about using HMRC communications to provide such information, he replied that this approach was oversubscribed, but that it may be something that could be done through other organisations. He said:

The trouble is literally every branch of Government is trying to load, like a Christmas tree, on an HMRC communication. We need to think about that. DVLA does not necessarily communicate with every employer but probably does because most employers will have some kind of vehicle. That is what I would like to focus on more…109

89.We encourage the provision of practical support and advice on pregnancy and maternity issues to SMEs in particular. The Government should ensure that the actions it takes forward to improve employer access to information include practical support aimed specifically at SMEs. Such support could include: templates and guidance to assist employers in meeting their obligations to new and expectant mothers; information about good recruitment and equality practices; and the provision of information alongside PAYE and VAT information for new traders and businesses. This kind of support should be made available within the next year.

The case for a single website

90.A key EHRC recommendation on the provision of information was that the Government should create a single comprehensive online site where both employers and individuals could easily find out about their rights, responsibilities and good practice in relation to pregnancy and maternity in the workplace. The Government agreed to this in principle, accepting that there was “scope for more joining up and better signposting to the types of information that are available. However, it also said that it “would be difficult to cater for all of the various types of information that employers and employees need on a single website.”110 It agreed to work with the Advisory, Conciliation and Arbitration Service (ACAS), EHRC and organisations representing pregnant women and employers to “establish what information is most important for pregnant women, to understand the needs of users better, and to improve the online information on rights, responsibilities and good practice.”111

91.A number of the witnesses we heard from supported the idea of a single, trustworthy source of information.112 Louise Handley expressed surprise at the Government’s rejection of this recommendation, which she said seemed “defeatist at the outset”. She added that it was not particularly helpful to have “scattered information” for managers, employers and individuals, and suggested that “bringing some of those messages together organisationally” might help to start conversations and resolve issues.113 However, Working Families said that its own experience of attempting to create a one-stop shop for advice suggested that this would be difficult to do.114

92.When questioned about the Government’s apparent reluctance to commit to implementing a single website, the Minister responded that it was an “absurd idea that the answer to every problem is to have a new website, which then by definition has a URL that nobody knows, and you then have to market.” He argued that that it would be better to “point people to the resources in places they already go” such as ACAS, Facebook and the EHRC’s website.115 However, we note that only 8% of the women surveyed for the BIS/EHRC research sought advice from external organisations, with 4% seeking advice from ACAS, 2% from Citizens Advice, 2% from a trade union, 1% from a lawyer or solicitor and 1% looking on the internet.116 This suggests that the sources of information that are already available are not as well known or used as the Minister suggests and will therefore need to be marketed if access to information is to increase.

93.We support the EHRC’s recommendation for a single comprehensive online site where both employers and individuals can easily find out about their rights, responsibilities and good practice in relation to pregnancy and maternity in the workplace. It seems both logical and practical to have one starting point for all queries on these issues. We do not accept the Minister’s suggestion that marketing a new URL is a significant barrier, given that the Government has undertaken to implement an awareness-raising campaign on these issues. However, the most important outcome is that employers and employees can more easily access the information they need, and that they start to do this in far greater numbers than is currently the case. The Government should give further consideration to the feasibility of a single website.

Encouraging a change in attitudes

94.The BIS/EHRC research showed a positive overall picture for employer attitudes, with the majority of those surveyed (84%) reporting that it was in their interests to support pregnant women and those on maternity leave. However, the finding that more than three quarters of women surveyed had experienced negative or discriminatory experience shows that those positive attitudes are not always translating into a positive experience for employees.

95.There was also evidence of less positive attitudes, with some finding particular statutory rights unreasonable or difficult to manage, and with others seeing pregnant women and mothers as being less committed than other staff. For example:

The line manager effect

96.Even where employers hold positive attitudes, this may not filter down to employees through their manager. The BIS/EHRC research found that treatment by a line manager “was generally felt to have a greater impact on the experiences of mothers (whether positive of negative) than the role played by HR”.118 This finding was borne out in the evidence we received. The women we spoke to on our Portsmouth visit agreed that the attitude of line managers was very important.119 One of the Portsmouth focus groups concluded that “their line managers were out of their depth empathetically and from a Human resources perspective, having no idea how to deal with the issues of having a pregnant employee.”120

97.Scarlet Harris of the TUC told us that “a lot of the discrimination that goes on is at line manager level” and highlighted the need to ensure that managers at all levels of organisations received the right training. She said:

[S]ome employers will have a good understanding of legal rights and they will have a huge HR department that is completely on top of every development in legislation, and it is all written down in a book and they have clear policies in place, which may be excellent policies, with enhanced maternity pay and maternity leave and all of that. However, that training is not happening at all levels of management.”121

Other witnesses also highlighted the importance of line manager training, including unconscious bias training.122 Sue Coe of the EHRC told us there was a need to “reach out to line managers”, because 55% of companies did not train their line managers on some of these issues.123

98.The ERHC recommended that ACAS work with it to raise employers’ awareness of “existing guidance on recruiting and managing pregnant women and maternity-related issues and absence” and to produce training for line managers.124 The Government noted in its response that ACAS had committed to do this.125 However, OnePlusOne suggested that more detail was needed on the training proposed for managers.126

99.We emphasise the importance of good-quality training to managers in ensuring that good practice permeates all levels of organisations, and we share the concerns that have been raised regarding a lack of detail about the work being done in this area. The Government should outline in detail in their response to this Report the action being taking to ensure wider uptake of good-quality training for line managers. This should include the issues to be covered in any ACAS-designed training and any targets for take-up of training.

Leading the way forward

100.A key EHRC recommendation was that the Government work in partnership with the EHRC and business leaders to: develop a joint communications campaign aimed at employers on the benefits of retaining pregnant women and new mothers in the workplace; and to demonstrate creative approaches to attracting, developing and retaining women in the workforce before, during and after pregnancy.127

101.The Government accepted this recommendation in principle, stating that it would “work with the EHRC and business leaders to promote opportunities for women, including pregnant women and new mothers: with a view to closing the gender pay gap, empowering women who want to work to do so, and ensuring that female talent is recognised and rewarded.”128

102.Elizabeth Duff of NCT expressed disappointment at this response, telling us:

The Government response says, “Accept in principle”, but I do not actually see anything in what they have written underneath that looks as though any such campaign is planned or has any strength to it. That is a real missed opportunity because I do believe it is very clear. The report has come out very late and it would have been a very good sign to see something like that really picked up and addressed in a positive way.129

NCT’s written evidence suggested that a communications plan aimed at employers should be robustly taken up” to encourage employers to actively support women in the workplace during the maternity period, as otherwise support “may remain passive.130 Chwarae Teg said that the Government “could go further in its response to the recommended communications campaign” and that it should work with a range of bodies to deliver an effective campaign.131

103.The EHRC also expressed disappointment at the way in which the Government was taking forward this aspect of the recommendations. Caroline Waters emphasised the need for clear leadership from the Government to drive the change in attitudes and behaviours that is needed. She told us that the EHRC wanted the Government to “step up to take a really positive leadership position in the way that they did around gay marriage, for example, and to really move the agenda forward.” She added that this would require “a sustained high level input from Government”.132

104.We asked the Minister when the Government would provide a more detailed plan of the actions it would be taking in response to the report and how it would demonstrate the leadership that the EHRC was looking for. He replied:

I am sorry; we do not intend to publish an implementation plan. We have very clear recommendations. We have been very clear about our response to those recommendations. We have accepted the overwhelming majority of them. We are now working with the commission, with ACAS, with the Health and Safety Executive, and will continue to work with business groups…I do not believe that we need to publish an action plan to actually follow up. Rather than publishing a plan, I would rather just get on with the work, with the commission, and with all of these other bodies.133

On leadership, he said “I do not know what leadership means if it is not just getting on with the job.”134

105.We are concerned by the lack of detail in the Government’s response to the EHRC’s recommendations and we do not accept the Minister’s suggestion that the Government has set out clearly the action that it will take. Many of the EHRC’s recommendations were accepted in principle, with caveats, and there is a lack of clarity about which parts of those recommendations will be taken forward, when and how. We are surprised by the Minister’s assertion that it is not important or necessary to produce a plan, and that the Government can provide leadership without setting out what they intend to achieve, by when and how. On the contrary, if the Government is unable to set out a vision that can be shared, it less likely to be able to provide effective leadership on this issue.

106.The Government should publish, alongside its response to this Report, a strong, specific communications plan for the awareness-raising and attitude-changing work it has agreed to undertake in response to the EHRC’s recommendations. The plan should include clear timelines and should set out where accountability for implementation will lie.

Carrots and sticks

107.Several witnesses agreed that the awareness-raising approach being taken forward needed to be underpinned by appropriate implementation and enforcement if the employers with the poorest records on pregnancy and maternity discrimination were to be reached.135 Academic Alexandra Heron said that “the time for another information campaign on rights and obligations is past unless it is backed up by making remedies accessible, effective and enforceable.”136 Working Families flagged up the need to deal with “rogue” employers, stating:

The EHRC and the Committee have indicated an interest in working with employers to secure changes in practice. While engagement is key to stamping out pregnancy and maternity discrimination, it is important to note that those employers who currently discriminate are rogue and acting outside of the law. An awareness-raising campaign on the economic benefits of employing pregnant workers, while potentially useful, will not go far enough. Negative consequences – or sticks – as well as carrots are needed to root out unlawful practice.137

108.SarahJane Butler of Parental Choice also mentioned carrots and sticks, and suggested the form these might take:

The recommendations are a good starting point, but it takes a lot more...There needs to be a carrot-and-stick approach towards employers. There has to be an encouragement for them to gender pay report, for example, publish their retention rates and stand up and be counted, and they should be highlighted if they are shown up as being a discriminatory employer. At the same time, there should also be rewards. For example, the recommendation of a collective insurance scheme for small businesses to help them is a very good one. Perhaps increasing the small employers rebate is another good one.138

109.Other witnesses agreed that reporting on the retention of employees would be useful. Academic Alexandra Heron suggested that large firms should be required to monitor and report to the Government on employees who leave their job during maternity or shared parental leave, or when it finishes, as in Australia, as well as on those who leave within 12 months of return.139 Maternity Action suggested that employers should be encouraged to report post-maternity leave retention rates as part of gender pay gap reporting and also to analyse retention rates for women “one year after a successful application for flexible working”.140

110.When we asked Sue Coe whether the EHRC would support employer reporting of retention rates, she said it was “an excellent idea” that “could really drive progress”.141 However, the Minister told us that reporting requirements could be a regulatory cost on business and that the Government would need to evaluate the idea. He said:

I can certainly see the attractions as it were, in terms of the information that would bring forward. We have introduced quite a lot of new, different things in the last year. I know that it is frustrating, in a sense, when one feels that Government should be going further. However, we would probably want to allow those interventions to bed in, see what information we get back and see whether it drives a change in behaviour before we start adding a whole lot more.142

111.Other “sticks” suggested by witnesses included: publishing the names of all employers that had lost employment tribunal claims relating to pregnancy; publishing the names of all employers that had not paid tribunal claims in full; and requiring employers found to have committed discrimination to make enforceable undertakings to take action to prevent discrimination.143

112.Witnesses also proposed a number of incentives to encourage better practices among employers. The women we spoke to in Portsmouth suggested tax relief to encourage employers to take on part-timers and enable more flexible working.144 Sarah-Jane Butler suggested increasing the Small Employers’ Relief for statutory maternity pay from 103% to 105%.145 Alexandra Heron and YESS Law proposed increasing this rebate to up to 115% and linking this to retention of the returning employee for a specified period after their return to work.146 Alexandra Heron said that this would “assist with the real costs of finding and training a substitute.”147

113.Citizens Advice said that many small and medium-sized enterprises (SMEs) did not know about Small Employers’ Relief, and that this contributed to the “SME perception that pregnant employees will be an expensive burden on the business.” It suggested that information about reclaiming this rebate could be provided on the MAT B1 form and that the process of reclaiming could be simplified for SMEs by doing this automatically through the tax system, thus removing the need for them to apply.148

114.We welcome the joint communications campaign being taken forward by the Government in partnership with the EHRC and businesses. However, we are not convinced that this approach alone will be enough to tackle the discrimination and negative employer attitudes evidenced in the BIS/EHRC research.

115.The communications campaign needs to be underpinned by a strategy to provide practical support as well as clear incentives and disincentives to encourage greater compliance by employers. The Government should set out in its response to this Report the additional measures it will take to encourage compliance. In doing so, it should place particular emphasis on providing support and incentives for SMEs. We urge the Government to consider:

We further encourage the Government to link any reporting on retention rates to its work to reduce the Gender Pay Gap.

86 Q28

87 See Annex 2 for Portsmouth visit note

88 Sarah Barton (MPD0029)

89 See Annex 2 for Portsmouth visit note

90 Q21 [Catherine Rayner]; Q59 [Scarlet Harris]; Working Families (MPD0005); National Childbirth Trust (MPD0015); Pregnant Then Screwed (MPD0017); Maternity Action (MPD0024); Sarah Barton (MPD0029)

91 Sarah Barton (MPD0029)

92 See Annex 2 for Portsmouth visit note

93 Q59

94 Q87

95 Sarah Barton (MPD0029); See Annex 2 for Portsmouth visit note

96 Q59 [Scarlet Harris]; Maternity Action (MPD0024), para. 14; National Childbirth Trust (MPD0015)

97 Maternity Action (MPD0024), para. 14

98 Maternity Action (MPD0024), para. 15

100 Q116

101 Qq6, 14, 30 [Rosalind Bragg]; Qq14-21, 27 [Catherine Rayner]; Qq41, 58 [Siobhan Endean]; Q123 [Caroline Waters, Sue Coe]; See Annex 2 for Portsmouth visit note; Sarah Barton (MPD0029);

104 National Childbirth Trust (MPD0015)

105 Qq86-88

106 Citizens Advice (MPD0027), para. 4.1

107 Q87

108 Citizens Advice (MPD0027), para. 2.3 and annex 1

109 Q179

111 Ibid, p.10

112 Annex 2, Portsmouth visit note; Q89 [Louise Handley]; National Childbirth Trust (MPD0015); Chwarae Teg (MPD0016); Maternity Action (MPD0024

113 Q89

114 Working Families (MPD0005), para. 4.3

115 Q156

119 See Annex 2 for Portsmouth visit note

120 Sarah Barton (MPD0029)

121 Q55

122 Q56 [Siobhan Endean]; Q82 [Mark McLane]; MPD0012 (OnePlusOne); Sarah Barton (MPD0029); MPD0014 (Chartered Institute of Personnel and Development); National Childbirth Trust (MPD0015)

123 Q130

126 MPD0012 (OnePlusOne), pp. 1-2

129 Q28

130 National Childbirth Trust (MPD0015)

131 Chwarae Teg (MPD0016)

132 Q111

133 Q162

134 Q163

135 Q88 [Mark McLane, Sarah-Jane Butler, Louise Handley]; Alexandra Heron (MPD0010), para. 5; Working Families (MPD0005), paras. 3.1-3.2

136 Alexandra Heron (MPD0010), para. 5

137 Working Families (MPD0005), paras. 3.1-3.2

138 Qq88-89

139 Alexandra Heron (MPD0010), para. 5

140 Maternity Action (MPD0024), para. 10

141 Q146

142 Q185

143 Maternity Action (MPD0024), para 32; Alexandra Heron (MPD0010), para. 7

144 Annex 2, Portsmouth visit note

145 Q90. For information on Small Employers’ Relief, see, Get financial help with statutory pay

146 Alexandra Heron (MPD0010), para. 4; Your Employment Settlement Service (YESS) Law (MPD0019)

147 Alexandra Heron (MPD0010), para. 4

148 Citizens Advice (MPD0027), para. 9.2

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4 August 2016