158.We have set out our concerns about the need for greater enforcement of measures to prevent pregnancy and maternity discrimination. We have also set out our concerns about the burden of enforcement resting predominantly with women. Several witnesses have suggested that there could be a greater role for statutory and independent bodies in enforcing pregnancy and maternity discrimination laws and measures. For example, Maternity Action saw a greater role for the HSE in ensuring that health and safety protections for new and expectant mothers were properly enforced. It recommended:
HSE must work together with local inspectors to ensure consistent examination of the suitability of general risk assessments in relation to pregnant women and new mothers, as well as ensuring inspectors request to see specific risk assessments where there is a pregnant woman or new mother in the workplace.
159.Alexandra Heron noted the low levels of enforcement action by women and commented that “not to enforce the law invites it to be disregarded”. She went on to suggest that enforcement “should be undertaken by a properly resourced independent agency which can relieve employees not wishing to bring their own case by investigating and taking action against the employer.” Working Families outlined its concerns about the “antagonistic”, “often lengthy” and “increasingly legalistic” tribunal process and suggested that further consideration be given to “alternative mechanisms to ensure that the law is upheld”. It added that ACAS could be involved earlier in the appeal or grievance process.
160.When we asked the EHRC if it could play a greater enforcement role, Sue Coe told us that this would not be a good use of resources. She said:
One reaction to…[the] really shocking figures that came out of the research would be more enforcement and to lead with enforcement. That is not the correct approach. We would sink a great deal of resources, but perhaps not very effectively, if we supported more and more individual cases, which do not have a strategic push in terms of clarifying the law, because this is a very settled area of law.
161.Conversely, the Minister told us that the focus in relation to increasing compliance with pregnancy and maternity discrimination should be “about enforcement rather than changing the law”. He went on to suggest that the burden of enforcement for pregnancy and maternity discrimination should remain with the women experiencing discrimination, stating:
We do not want to change the fundamental way the whole system works, which does not just work in relation to this kind of discrimination but works with regard to all other employment rights. We do not proactively send enforcement teams into companies randomly in the same way, for instance, that we send Ofsted into schools…and haul them over the coals if their employment practices are not proper. Our approach, in order to have a reasonable balance of constraint and freedom, is to say, “There are clear rules. It is your duty to understand them and to abide by them, and if you do not, and somebody complains about it then you will suffer through this process.
162.The Government’s approach to improving compliance with pregnancy and maternity discrimination law is disjointed and contradictory. It has stated that it is important to focus on enforcement and yet its main focus is on awareness-raising and persuasion. It has voiced concern about the low numbers of women taking enforcement action against their employer, but has rejected the EHRC’s recommendations to remove barriers to justice and has no plans to ease the burden of enforcement on women. It has acknowledged that it does not know why so few women take enforcement action, but is unwilling to allocate resources to working out how best to encourage and enable more women to do so.
163.The Government must take action both to relieve the burden of enforcement on women and to encourage more enforcement action by women. It must set out in detail in its response to this Report the measures it will take to ensure that pregnancy and maternity discrimination law is properly enforced. It should consider:
164.The BIS/EHRC research provides the most comprehensive information currently available on the extent and nature of pregnancy and maternity discrimination in the UK. Scarlet Harris from the TUC said that it was “an incredibly robust piece of research” and highlighted the gaps in knowledge about such discrimination before the research was published, stating:
The TUC really welcomed the report; it was a long time coming…We had been saying for a long time that we needed updated research, because we had a sense from the unions that we work with that it was a worsening situation and we wanted some evidence to back that up.
165.Maternity Action also commented on the fact that regular Government monitoring of trends in the labour market had not identified the discrimination evidenced in the research. It went on to suggest that “a more active programme of data collection and research” should be undertaken “to keep track of what is happening to women in the workplace.” Its suggestions for monitoring included:
166.The EHRC recommended that the UK, Scottish and Welsh Governments “include relevant questions about pregnancy and maternity discrimination and disadvantage in planned surveys of employers and mothers, report on the outcomes and keep under consideration what further research or action may be needed to address enduring areas of discrimination and disadvantage.” It also recommended that ACAS consider “monitoring and publishing the number and outcome of Early Conciliation cases in England, Scotland and Wales that involve pregnancy or maternity discrimination or a breach of other rights related to pregnancy or maternity.”
167.The Government accepted the recommendations, stating that it and ACAS were considering how best to take them forward. It also noted that ACAS “already publishes the number of cases relating to pregnancy and maternity discrimination in its annual report and is investigating options to publish further data sets to allow outcome analysis to be done by external bodies.”
168.Sue Coe told us that the EHRC had not asked for a repeat of the whole BIS/EHRC survey because of the cost, but that key parts of it “should be measured at least annually, so we can see where we are going in terms of rates of women’s experience”. She suggested that the Government was best placed to do the monitoring because it had access to national-level surveys, and gave the following example of how these surveys might be used:
If we are measuring, for example, take-up of information and training of line managers, if those questions are fed into Government surveys of employers, which happen quite regularly, we can keep an eye on where that is going and know where the actions that have been taken are biting, where they are not and where more action needs to be taken.
169.Caroline Waters of the EHRC saw a role in monitoring for information collected by employers, noting that many employers already ran internal surveys and that they could also collect data on “levels of return and levels of satisfaction, with the experience of the take-up of flexible working patterns and perhaps even information like equal pay.” However, the EHRC did not make a recommendation on this.
170.When we asked the Minister how he would measure the success of the Government’s actions to tackle pregnancy and maternity discrimination, he said that he did not think key performance indicators were needed and that he just needed to “see progress.” When pushed on what progress would look like he said:
We would like to see that all of these different bodies have done what they need to do…we would like to see that the Health and Safety Executive has done what it needs to do with its guidance; that ACAS has done what it needs to do to try to communicate better to more employers… I do not think that it requires KPIs to update guidance; just get on and update the guidance and tell me when you have done it.
171.We note the importance of the BIS/EHRC research in establishing the extent and nature of pregnancy and maternity discrimination in the UK. It showed that discrimination had worsened since similar research was conducted a decade earlier, and this had not been picked up by labour market monitoring. We want to ensure that another decade does not pass before we are next able to ascertain the level of discrimination. The Government should commit to repeating the BIS/EHRC research in full or in part by the end of 2020. Regular and timely monitoring must also be undertaken to enable the Government, the EHRC and other interested parties to assess the effectiveness of the actions being taken to tackle this discrimination.
172.We welcome the Government’s acceptance of the EHRC’s recommendations on monitoring. It is positive that the Government has agreed to include questions about pregnancy and maternity discrimination in surveys of employers and women. However the lack of detail about what this monitoring will look like makes it difficult to assess how robust it will be and how useful in measuring the prevalence of pregnancy and maternity discrimination. We are concerned that the Minister does not recognise the need for targets to aid scrutiny and measure success. We do not accept his suggestion that simply completing the actions that the Government has agreed to take equates to success. We understand the desire to keep bureaucracy to a minimum but we do not see how the Government—or we—can judge the success of its actions if it does not set out clearly what it intends to achieve and how it will measure success.
173.The Government should set out in more detail how it plans to track the level of pregnancy and maternity discrimination in the UK, and the measures it will use to assess the effectiveness of its actions to tackle this discrimination. It should include in its response to this Report details of:
174.Sue Coe told us that the EHRC would do its own monitoring of the recommendations and that they “may take a little time to start to bed in”. However, Caroline Waters suggested that it would be “possible to see change by the end of the year, if we have the right kind of highlevel and sustained visibility, both from Government and from business leaders” although it might not be easy to produce “statistically valid” evidence of improvement.
175.The Minister saw a longer timescale for change, telling us that a “painstaking, consistent, sustained month-to-month, year-to-year, decade-long change of a culture” was needed and that it would be “some time before we are able to point to evidence of change in people’s experience”. He offered to report back to the Committee in a year’s time on the actions that the Government had taken, stating:
I am very happy to come back and say what we have done and what effect we think what we have done might be having, and what evidence we have for that.
176.We are concerned by the lack of urgency displayed by the Government in tackling pregnancy and maternity discrimination. We accept that complex work will be required and that some of this will take time to bed in, but there is also potential for quick wins. There is no reason why the Government should not have ambitious targets for positive and visible results within the next few years. It should also be prepared to take further action if there is no evidence that the situation is improving. The Government should set out ambitious targets for reducing the level of pregnancy and maternity discrimination within the next two years. It should review its monitoring figures at least annually for evidence that pregnancy and maternity discrimination levels are decreasing significantly, and publish this review. If there is insufficient progress within the next two years, the Government should set out what further action it will take to tackle discrimination.
214 Maternity Action (), para. 22
215 Alexandra Heron (), para. 3
216 Working Families (), para. 5.1
221 Maternity Action (), para. 31
222 Ibid, paras. 32-33
223 EHRC, Our recommendations to tackle pregnancy and maternity discrimination, March 2016, p. 18
224 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. 13
230 Qq155 and 162
4 August 2016