Pregnancy and maternity discrimination Contents

3Improving access to justice

Overview

116.More than three-quarters (77%) of the mothers surveyed for the BIS/EHRC research reported potentially discriminatory or negative experiences.149 Of those, only around a quarter (28%) had discussed the issue with their employer and only 3% went through their employer’s internal grievance procedure.150 Reasons for not raising a complaint included: fearing the impact on their relationships with their colleagues or employer; feeling that nothing would change; their own stress and tiredness; lack of information about their rights; lack of clear complaints procedures; and the financial cost of pursuing a complaint.151

Dealing with disputes

117.For those who do raise a complaint or grievance about their treatment, some disputes can be dealt with informally through discussions with managers. ACAS guidance on raising a grievance at work suggests that it is best to try to resolve grievances informally if possible and advises employees to raise issues promptly.152 If informal resolution is not possible, employees can raise a formal complaint or grievance, for which employers should have a formal procedure set out in writing. Figure 1 below sets out ACAS’s guidance on handling grievances:

118.Figure 1: ACAS guidance on handling grievances

Source: ACAS, Discipline and grievances at work: the Acas guide (2015) p.6

119.For women who feel they have a grievance and are considering making a complaint, access to the right information and advice is important. The EHRC found that mothers who had resolved issues with their employer at an early stage had found that advice from external organisations such as ACAS and Citizens Advice or a trade union, or specialist advice providers such as Maternity Action, had helped them to reach agreement.153 Often, when women notified their employer that they had sought advice from an external organisation, this “triggered action from the employer to resolve the issue.”154

The role of tribunals

120.If the employee and employer cannot agree how to resolve their dispute, the case can be taken to an employment tribunal to be heard by a judge. Before applying to have a case heard at a tribunal, applicants must notify ACAS of their intention to make a claim to the tribunal. They are then offered the chance to try to settle the dispute using ACAS’s free early conciliation service. If this is unsuccessful, the claim to tribunal can go ahead.155

121.Witnesses noted the importance of tribunals as a means of resolving disputes and encouraging employers to carry out their obligations, but there was also agreement that it was better to resolve disputes earlier, and that ideally cases should not get to tribunal.156 Louise Handley told us that the LSE focused on “early resolution of disputes in the workplace before they even reach our grievance procedure, ideally, let alone the tribunal stage.”157

122.Sarah-Jane Butler of Parental Choice emphasised that going to tribunal could be an unpleasant and stressful experience. She told us:

I do not think anybody voluntarily agrees to put themselves through a tribunal system unless they really have to. I would say most women would not want to have to go through all of that stress and, even if it is relatively cheap, have to pay that kind of money. They just want to be treated fairly within the workplace. They want to be able to come back to work.158

This reluctance to go to tribunal is reflected in the EHRC/BIS finding that fewer than 1% of the mothers surveyed (18 out of 3,254) pursued a claim to an employment tribunal.159 Reasons for not going to tribunal included: earlier resolution of the grievance; the prospect of a tribunal being too daunting; being too busy with the new baby or wanting to focus on pregnancy or maternity leave; not wanting to get into trouble at work; feeling that the case was not strong enough; fear of losing their job; getting another job; and not being able to afford the fees.160

123.We also heard directly from new and expectant mothers, on our visit to Portsmouth, that they probably would not think about going to employment tribunal when pregnant or looking after a new baby. The main reasons given were that there would be too many other things to think about; being put off by the idea of having to represent themselves while looking after a small baby; and tribunal fees, particularly for those on statutory maternity pay.161

Tribunal fees

124.Fees for employment tribunal claims were introduced in 2013. The Government’s stated aims in introducing the fees were to: “transfer a proportion of the costs from the taxpayer to those who use the tribunal where they can afford to do so”; “encourage parties to seek alternative ways of resolving their disputes”; and to “maintain access to justice”.162 The fees for bringing a discrimination case are £250 for making the claim and £950 for the hearing. 163 This does not include any legal, travel or other costs associated with making a claim. Help with fees is available for those on a low income or certain benefits.164

A barrier to justice?

125.Several witnesses suggested that rather than achieving the Government’s aim of maintaining access to justice, tribunal fees were a barrier to justice.165 Catherine Rayner told us they were too high, stating:

The fees that have been introduced are incredibly high and they are not necessarily recoverable…The additional cost, when you look at the rate of maternity pay that is currently being paid to women unless there is some better contractual scheme, means that the costs are out of all proportion to what is affordable. That is very significant. The costs are really problematic, and the mere fact of the costs in what is essentially a cost-free jurisdiction is a real disincentive.166

126.Since the introduction of fees, the number of sex discrimination and pregnancy-related tribunal claims has dropped significantly, as highlighted by the EHRC. It has outlined that the number of sex discrimination claims dropped from 18,814 in 2012/13 to 4,471 in 2014/15 (a 76% decrease) and that the number of pregnancy-related cases dropped from 1,589 in 2012/13 to 790 in 2014/15 (a 50% decrease).167

The case for abolishing or reducing fees

127.The EHRC recommended that the Government should make changes to the employment tribunal fee system “to ensure that fees are not a barrier to accessing justice for women experiencing pregnancy and maternity discrimination”.168 The Government rejected this recommendation, stating that it was “too soon to consider whether any action is needed” and highlighting that a Government review of the fees was under way.169

128.A number of witnesses voiced their concerns about the very low numbers of women now going to tribunal and the effect this would have on women’s ability to assert their rights and hold their employer to account.170 A key issue was the concern that some employers could act with impunity knowing that they were unlikely to be taken to tribunal. Working Families said there was “no doubt” from its experience that the fees were “discouraging good claims”, with the number of queries to its helpline remaining stable but with a “dramatic decline” in the number of people asking for its help “in the employment tribunal process”. It went on:

We have seen a rising category of rogue employers who consider that they do not have to and will not obey the law unless forced to do so and who are well aware that the fees create a major barrier to people bringing claims against them.171

Similarly, Siobhan Endean said that employers were “confident that they are not going to be tackled, because women cannot afford…the £1,200 to go to employment tribunal”.172

129.Scarlet Harris of the TUC also suggested that some employers were less likely to comply with their obligations if they knew that women were unlikely to take action, adding, “Employers can be quite candid, saying, ‘Yes, we know that is your legal right but what are you going to do about it?’”173 On a similar note, Rosalind Bragg of Maternity Action suggested that the low likelihood of a woman taking a case to tribunal would make it harder to achieve satisfactory early resolution of a dispute, stating:

Even in 2005 we had a very low proportion of women who took tribunal claims; only 3% of those with substantive discrimination took claims. However, they are fundamental to the negotiation process that takes place with employers before going to the tribunal. If employers are confident that women cannot go to the tribunal then we are much less likely to achieve a resolution in the informal and oral grievance processes that precede tribunal claims.174

130.Maternity Action concluded that “the overwhelming majority of women simply cannot afford the tribunal fees, especially with the financial pressures of a new family” and that the Government “must abolish the upfront fees for employment tribunal claims for pregnant women and new mothers”.175 Working Families stated that it had “long campaigned” for their abolition.176. Catherine Rayner said there was a need to “look again” at tribunal fees, and Scarlet Harris said they were “an additional barrier that does not need to be there.”177 The Scottish Women’s Convention supported the “commitment on the part of the Scottish Government to scrap Employment Tribunal fees once powers are devolved to the Scottish Parliament”.178 Citizens Advice recommended that tribunal fees be “reduced to make them an accessible means of resolving employment disputes where conciliation has failed”.179

131.When we raised the issue of fees with the Minister, he highlighted the role of conciliation, and referred to the Government’s review of the impact of tribunal fees.

Government review of the impact of tribunal fees

132.In June 2015, the Government began a review of the impact of the introduction of tribunal fees. The terms of reference for the review stated that it would gather evidence on the take-up of alternative dispute resolution services, including the numbers of people using ACAS’s conciliation services, and the impact of mandatory notification of a dispute.180 The review has not yet reported. In a letter of 29 June 2016, the Parliamentary Under-Secretary of State for Justice, Dominic Raab MP, told us that “good progress” had been made on the review and that it would be “published in due course”.181

Tribunal time limits

133.Employment tribunals are subject to time limits. The deadline for making a discrimination claim is three months less one day from the date when the discrimination happened.182 A number of witnesses raised concerns about the effect of this time limit on pregnancy and maternity discrimination cases, with some commenting that the time limit is particularly unjust for new and expectant mothers, given the physical and emotional pressures on them at this time.183 Catherine Rayner said:

The pregnant woman or the woman dismissed for pregnancy really is a paradigm case. As has already been said, a woman in that situation is going to be exhausted because she has probably got a new baby. She has also got another focus in her life. She is probably looking ahead to what she is going to do when she does want to return to work if her employer is being unsympathetic, and she probably does not have the additional time, energy or emotional ability that is necessary to take action immediately.184

134.The EHRC recommended that the Government consider increasing the time limit for a woman to bring an employment tribunal claim from three to six months in cases involving pregnancy and maternity discrimination, in line with claims regarding redundancy and equal pay.185 The Government rejected this recommendation, stating that there was “no evidence from the responses to the research into pregnancy and maternity-related discrimination to suggest that there is a need to increase the time limit for a woman to bring an Employment Tribunal claim.” It also said that there was already flexibility for the time limit to be extended “to whatever limit the Tribunal consider to be ‘just and equitable’.”186

135.The EHRC rejected the Government’s assertion that there was no evidence of a need to increase the limit. Caroline Waters said:

We have presented it. The evidence is here. You have seen the evidence. They only have to talk to women, particularly new mums, to understand that that is a very unique time in a woman’s life. They have told us that they are often tired and perhaps the sleepless nights and all the stress and the worry of, “Am I doing the right thing for my child?”, means that the last thing that they feel capable of is doing something that they perceive as costly and difficult.187

136.We received evidence from a number of sources that the time limit was a barrier. Pregnant then Screwed said that it knew, from the stories it had received and its conversations with victims of discrimination, that the three-month time limit caused “a major barrier for women when accessing justice”. It added that its website had more than 500 stories offering insight into the different experiences of women, including 32 stories stating that women could not go tribunal because the deadline had passed “by the time they were in a position to seek justice.”188 Working Families said that it was disappointed by the Government’s rejection of the EHRC’s recommendation to increase the time limit, stating:

In our experience this would make a real difference. At its simplest, the length of pregnancy and maternity leave means that the implications of discriminatory decisions – for example forcing a pregnant worker on to sick leave, which can consequently reduce the amount of maternity pay she is eligible for – often only become clear to the affected employee some months down the line.189

Maternity Action said that the time limit was a barrier to justice and recommended that the Government extend the time limit to six months and “develop statutory guidance for Employment Tribunal judges concerning the use of their discretion in relation to extending the time limit in claims brought by pregnant women and new mothers.”190

137.When we put it to the Minister that the time limit was an issue for many women, he responded that it was important to understand that tribunals can “waive the time limit and extend it if they believe that it is justifiable in the circumstances to do so” and that it was “not impossible” for the claim to be heard later.191

Justice Committee recommendations on tribunals

138.On 20 June 2016, the Justice Committee published a Report on Courts and tribunals fees, which looked at “changes introduced in recent years by the Government to fees for court users in the civil and family courts and in tribunals”192 The Committee looked at these issues in more detail than we have been able to achieve for this inquiry and we note its findings that tribunal fees have had a “significant adverse impact on access to justice for meritorious claims” and should be “substantially reduced”.193 We also note its recommendation that “further special consideration should be given to the position of women alleging maternity or pregnancy discrimination, for whom, at the least, the time limit of three months for bringing a claim should be reviewed.”194 Finally, we note its finding that it is “unacceptable that the Government has not reported the results of its review one year after it began and six months after the Government said it would be completed” and support its call for the Government to “publish the information it has collected as part of the review of tribunal fees.”195

Mind the enforcement gap

139.Before we set out our conclusions and recommendations on these issues it is important to consider the wider context. As the Minister made clear in his evidence, in this area of law the burden of enforcement rests on the individual who has experienced discrimination to seek redress and thereby increase employer compliance.196 He noted that “a very small number of women” had “got to the point of registering a formal complaint” and acknowledged that a key issue was working out how to “encourage more women to take that route.” However, he did not have a clear idea of why the numbers of women taking action were so low, stating:

I would not presume to know whether it is that people either do not know about what routes are available to them—that could be part of it—or whether it is that people feel that they frankly have already got quite a lot going on in their lives.197

140.When we pressed the Minister on whether tribunal fees might be one reason why so few women took their case to tribunal, he emphasised the role of conciliation and the fact that women would now be offered conciliation by ACAS if they went to lodge a tribunal claim. However, he acknowledged that there was still the question to answer of “why nobody calls in the first place to lodge a claim” and went on:

I suspect that there are a lot of people who are put off by the hassle. Also, by definition these are pregnant women; they have got quite a lot else on their minds and on their plates. I do not know quite what the suggestion would be as to how to persuade more of this number of women who…the report said had left their jobs as a result, to report.198

141.Following the Minister’s admission that the Government does not have a clear idea why more women are not taking action against their employer to tackle discrimination, and that they do not know how to persuade more women to do so, we asked if the Government had any plans to seek answers to these questions. The Minister responded that the Government was “not in a position to commission a huge piece of further research” and that its “main focus should be on trying to actively promote good behaviour by employers because if we could do that … then in a sense we would not need to be encouraging more women to complain when something goes wrong.”199

142.We note the Minister’s acknowledgment that pregnant women “have got quite a lot else on their minds and on their plates” and that this may be a reason why they do not take action against their employer when they suspect there has been discrimination. This easy acceptance of the pressures on expectant mothers contradicts the Government’s assertion that there is “no evidence” of a need to increase the time limit for a woman to bring an employment tribunal claim. We agree with the EHRC that the case has been made.

143.There is clear evidence of a need to extend the limit for new and expectant mothers. We therefore endorse the Justice Committee’s recommendation that the Government review the three-month time limit for bringing a claim in maternity and pregnancy discrimination cases. We suggest that six months would be a more suitable time limit.

144.We have concerns about the Government’s approach of placing all its hopes in a campaign to persuade employers to comply with the law. It is clear that women are not taking action in large enough numbers to ensure compliance from employers, and yet this type of action is the main source of enforcement for discrimination law. This enforcement gap leaves it open to rogue employers to flout the law, and the actions set out by the Government do not deal with this. The Government has a clear responsibility to ensure that pregnancy and maternity discrimination laws and protections are better enforced.

145.We agree with the Government that it is preferable for workplace disputes to be resolved at the earliest possible stage and that tribunals should be a last resort. However we also recognise the important role that tribunals play in enabling individuals to seek redress, in holding employers to account, and as a wider deterrent. We are well aware that the number of sex discrimination and pregnancy-related tribunal claims was low before tribunal fees were introduced. We do not suggest that the removal or reduction of fees would solve the enforcement problem. Nonetheless, we cannot ignore the evidence we have received and the Justice Committee’s findings that tribunal fees have had a significant adverse impact on access to justice.

146.We join the Justice Committee in calling for a substantial reduction in tribunal fees for discrimination cases. The Government should publish the findings from its review of the impact of the introduction of tribunal fees as a matter of urgency and should set out in its response to this Report the action it will take to reverse the adverse effect of tribunal fees.

Access to one-to-one advice

147.As outlined above, lack of information about their employment rights was identified in the BIS/EHRC research as a barrier to women raising complaints with their employer about negative or potentially discriminatory experiences.200 While access to general information was seen as important, witnesses also identified a need for some women to access one-to-one advice. Catherine Rayner of the Discrimination Law Association highlighted the importance of specific and timely legal advice, commenting that pregnancy and maternity discrimination and rights at work are “not straightforward”. She told the Committee that sometimes all that is needed is a few hours’ advice and a “sensible letter to the employer” to get “a very good result”.201

148.On our visit to Portsmouth, a number of mothers told us that they would not know where to go for advice about their legal rights if they were experiencing poor treatment or discrimination at work.202 Some thought they would try Citizens Advice but others suggested that it was insufficiently resourced to provide timely advice. One of the Portsmouth focus groups proposed that there should be workshops at children’s centres where they could go for such advice.203

149.Catherine Rayner also drew attention to reductions in access to legal advice about pregnancy and maternity discrimination issues over the years. She told the Committee:

When I started out as a lawyer, the green form scheme was available to deal with many of these very straightforward, fundamental problems and issues that women had. They could go to the law centre, the CAB, or a voluntary sector organisation to gain advice. That is no longer available to them. There has been a massive reduction in the amount of advice...”204

150.Citizens Advice provided us with its figures for the number of people it had helped with specific maternity rights and pregnancy discrimination issues in the past few years. In total, it helped 6,358 people in 2014/15 with, this number rising to 6,725 in 2015/16. For pregnancy discrimination figures, the number of people it helped rose from 1,551 in 2014/15 to 1,923 in 2015/16. Similarly, the number of people it helped with maternity rights (maternity leave, contractual maternity pay, other maternity rights and redundancy during maternity leave) rose from 5,256 in 2014/15 to 5,324 in 2016/17. It outlined that this advice ranged from the provision of basic information and signposting to advice and casework, which “might vary from 20 minutes for a one off advice interview, to 15 or more hours for detailed casework.” It explained that its work to help clients with pregnancy discrimination issues was about 10% casework such as negotiating a settlement, or helping a client to present their case to their employer or an employment tribunal. This suggests that there is a significant need for one-to-one advice at all stages of complaint.205

151.Citizens Advice highlighted that there was unmet need for its services, stating:

While we do not turn away anyone who reaches out to our service, we know that many individuals do not access our service who need advice. There are a range of reasons for this, including consumer behaviour, but one of the barriers is capacity in the service due to how our service is resourced…206

It suggested that the best way of meeting this need would be by providing “scaleable advice services, designed to best meet the needs of both the employee and the employer” and proactively taking an “advice and casework service out to touch-points where women who are pregnant can be helped (such as maternity groups, GP surgeries and other health settings), and to employers.”207

152.Citizens Advice also identified a wider unmet need for advice and support to women experiencing pregnancy and maternity discrimination, stating that the BIS/EHRC findings “suggest that an unknown but very significant number of women who experience maternity and pregnancy discrimination issues at work are not seeking advice or support from external organisations.”208

EHRC recommendations and Government response

153.The EHRC has highlighted the need for access to good-quality advice to “help employers and employees to understand their rights and obligations and resolve issues early on”.209 Sue Coe reiterated this need, telling us that it was important to “ensure that women have access to advice, as well as information.”210 The EHRC recommended that the Government should review the availability of and women’s ease of access to employment advice services and address any barriers identified.211

154.The Government accepted this recommendation, stating that it would “review the existing guidance and accessibility of employment advice services to ensure that pregnant women and women on or returning from maternity-related leave can access the information and advice services they need to make informed decisions and challenge bad practice”.212 However, the Minister told us that ACAS was already providing this service and that the Government was “not planning to invest more in this.”213

155.We were disappointed to hear from the Minister that the Government has already decided not to invest any more in improving access to good-quality advice. It is unclear whether the Government has reviewed the accessibility of employment advice services, as it said it would in its response to the EHRC, or whether it has merely concluded that no action is required without conducting a review. The Government must set out in its response whether it has conducted this review, and if so what its conclusions were. If it has not yet conducted this review, it should now do so and should publish its findings by the end of 2016.

156.Given the low numbers of women taking enforcement action against their employer in pregnancy and maternity discrimination cases, it is crucial that there is sufficient access to free, good-quality, one-to-one advice and support where needed. ACAS provides a valuable service but we do not accept the Minister’s assertion that it can provide all the advice and support that is required. For example, it cannot provide the kind of specific, focused legal advice and casework assistance that is offered by Citizens Advice. It is possible that the actions that the Government is taking to increase access to information will reduce the pressure on advice services for more general advice and signposting, thereby freeing up resources for more tailored advice. However, there may also be an increase in demand for such advice as more women become aware of their rights.

157.The Government should work with the main organisations providing free, good-quality, one-to-one advice to women on pregnancy and maternity discrimination to monitor the uptake of and estimated unmet need for such advice. It should further commit to assessing, in a year’s time, whether additional resources for one-to-one advice are required, and to making such resources available.

149 HM Government and EHRC, Pregnancy and maternity-related discrimination and disadvantage: Experiences of mothers, March 2016, p. 38

150 EHRC, Our recommendations to tackle pregnancy and maternity discrimination, March 2016, p. 14

151 Ibid, p. 14

152 www.acas.org.uk, Raising a grievance at work, accessed on 01 July 2016.

153 EHRC, Our recommendations to tackle pregnancy and maternity discrimination, March 2016, p. 10

154 HM Government and EHRC, Pregnancy and maternity-related discrimination and disadvantage: Experiences of mothers, March 2016, p. 146

155 www.gov.uk, Making a claim to an employment tribunal

156 Q20 [Elizabeth Duff]; Q25 [Catherine Rayner]; Q96 [Mark McLane]; Q98 [Louise Handley], Q105 [Sarah-Jane Butler]

157 Q98

158 Q95

159 EHRC, Our recommendations to tackle pregnancy and maternity discrimination, March 2016, p. 14

160 HM Government and EHRC, Pregnancy and maternity-related discrimination and disadvantage: Experiences of mothers, March 2016, p. 149

161 See Annex 2 for Portsmouth visit note

162 Ministry of Justice, Review of the introduction of Employment Tribunal Fees, June 2015.

163 www.gov.uk, Make a claim to an employment tribunal, accessed on 01 July 2016.

164 www.gov.uk, Get help paying court and tribunal fees, accessed on 01 July 2016.

165 Q12 [Rosalind Bragg]; Q55 [Scarlet Harris]; Q56 [Siobhan Endean]; Working Families (MPD0005), para. 5.2; Alexandra Heron (MPD0010), para. 7; Annex 2, Portsmouth visit note

166 Q29

167 EHRC, Our recommendations to tackle pregnancy and maternity discrimination, March 2016, p. 14

168 Ibid, p. 15

169 HM Government, Government response to recommendations made by the Equality and Human Rights Commission on Pregnancy and Maternity-related Discrimination and Disadvantage in the Workplace, March 2016, p. 12

170 Q16 [Rosalind Bragg]; Qq 55, 70, 155 [Scarlet Harris]; Q56 [Siobhan Endean]; Q75 [Samantha Rye]; Q94 [Sarah-Jane Butler]; Working Families (MPD0005), para. 5.2; Alexandra Heron (MPD0010), para. 7

171 Working Families (MPD0005), para. 5.2

172 Q56

173 Q55

174 Q30

175 Maternity Action (MPD0024), para. 29

176 Working Families (MPD0005), para. 5.2

177 Q15 [Catherine Rayner]; Q71 [Scarlet Harris]

178 Scottish Women’s Convention (MPD0006)

179 Citizens Advice (MPD0027)

180 Ministry of Justice, Review of the introduction of Employment Tribunal Fees, June 2015

181 Ministry of Justice (MPD0036)

182 www.citizensadvice.org.uk, Time limits for making a discrimination claim in the employment tribunal, accessed on 01 July 2016.

183 Q29 [Catherine Rayner]; Q138 [Caroline Waters]; Working Families (MPD0005), para. 5.4; Maternity Action (MPD0024), para. 29; Pregnant Then Screwed (MPD0030)

184 Q29

185 EHRC, Our recommendations to tackle pregnancy and maternity discrimination, March 2016, p. 15

186 UK Government, Government response to recommendations made by the Equality and Human Rights Commission on Pregnancy and Maternity-related Discrimination and Disadvantage in the Workplace, March 2016, p. 12

187 Q138

188 Pregnant Then Screwed (MPD0030);

189 Working Families (MPD0005), para. 5.4

190 Maternity Action (MPD0024), para. 29

191 Q175

192 Justice Committee, Second Report of Session 2016-17, Courts and tribunals fees,HC167, p. 3

193 Ibid, paras. 69 and 79

194 Ibid, para 79

195 Ibid, paras 59 and 79