Pregnancy and maternity discrimination Contents

Conclusions and recommendations

Are greater protections required?

1.We are disappointed that the EHRC and the Government do not think it necessary to place a duty on employers to conduct an individual risk assessment for new and expectant mothers. Such a requirement would help employers to provide a safe working environment and would not be a great burden. We do not accept the Minister’s assertion that this requirement would imply that employers no longer had to consider the risks to new and expectant mothers in their general risk assessment. We are not convinced that the EHRC’s recommended approach of encouraging employers to have conversations with women about risks is robust enough. While it may improve compliance among well-meaning employers, it is unlikely to persuade less scrupulous employers to meet their responsibilities. (Paragraph 43)

2.Employers should be required to undertake an individual risk assessment when they are informed that a woman who works for them is pregnant, has given birth in the past six months or is breastfeeding. The Health and Safety Executive should include this requirement in its guidance to employers by the end of 2016 and should ensure that it is properly enforced. It should also support employers in meeting this requirement by ensuring that model risk assessments for particular sectors and occupations are available to employers by the end of 2016. (Paragraph 44)

3.We are particularly concerned by the BIS/EHRC research finding that up to 21,000 women a year left their job because pregnancy and maternity-related health and safety risks were not tackled. We are also mindful that it is important that employers are sensitive to the employee’s wishes when offering alternative work or paid leave. (Paragraph 47)

4.It is imperative that new and expectant mothers who are concerned that their health and/or the health of their baby is being put at risk by their work have an easily accessible, formal mechanism to compel their employer to deal with such risks appropriately. There should also be a formal mechanism by which an employee can ask a doctor or midwife to confirm that specific risks at work need to be dealt with. The Government should consider how best to provide those mechanisms and commit to implementing them by the end of 2017. (Paragraph 48)

5.We are concerned by the evidence that new and expectant mothers who are casual, agency and zero-hours workers are: more likely to report a risk or impact to their health and welfare than other types of worker; more likely to leave their employer as a result of health and safety risks not being resolved; and less likely to feel confident about challenging discriminatory behaviour. We note that the EHRC has committed to work with employers to improve outcomes for this group, but we believe that additional rights and protections are also required. (Paragraph 56)

6.We understand that there are reasons why new and expectant mothers who are casual, agency and zero-hours workers do not have the same day-one rights as employees. However, we see no reason why they should not be entitled to paid time off for antenatal appointments. (Paragraph 57)

7.The right to paid time off for antenatal appointments should be extended to workers within the next year. This right should be available after a short qualifying period. (Paragraph 57)

8.Employers should not be able to avoid affording regular, long-term workers the same rights as employees because they have a different contract type. More pregnancy and maternity-related rights should be available to casual, agency and zero-hours workers after a suitable qualifying period of continuous employment. (Paragraph 58)

9.The Government should review the pregnancy and maternity-related rights available to workers and legislate to give greater parity between workers and employees in this regard. It should do this within the next two years. (Paragraph 58)

10.We find it shocking that the number of new and expectant mothers feeling forced out of their job has nearly doubled in the past decade. It is difficult to accept the EHRC’s characterisation of this as solely an issue of misinterpretation of the law. (Paragraph 70)

11.We are persuaded that additional protection from redundancy for new and expectant mothers is required. The Government should implement a system similar to that used in Germany under which such women can be made redundant only in specified circumstances. This protection should apply throughout pregnancy and maternity leave and for six months afterwards. The Government should implement this change within the next two years. (Paragraph 70)

12.We hope that the Government is committed to not only retaining but enhancing the current level of protections available to new and expectant mothers when the UK leaves the EU. (Paragraph 71)

13.Given the uncertainty about what a UK exit will mean, a statement of the Government’s intention to ensure that those rights and protections are not eroded would provide welcome reassurance during this period of transition. (Paragraph 71)

Improving access to information and encouraging a change in attitudes

14.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. (Paragraph 81)

15.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. (Paragraph 81)

16.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 . (Paragraph 82)

17.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. (Paragraph 82)

18.We encourage the provision of practical support and advice on pregnancy and maternity issues to SMEs in particular. (Paragraph 89)

19.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. (Paragraph 89)

20.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. (Paragraph 93)

21.The Government should give further consideration to the feasibility of a single website. (Paragraph 93)

22.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. (Paragraph 99)

23.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. (Paragraph 99)

24.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. (Paragraph 105)

25.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. (Paragraph 106)

26.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. (Paragraph 114)

27.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. (Paragraph 115)

Improving access to justice

28.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. (Paragraph 142)

29.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. (Paragraph 143)

30.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. (Paragraph 144)

31.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. (Paragraph 145)

32.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. (Paragraph 146)

33.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. (Paragraph 155)

34.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. (Paragraph 155)

35.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. (Paragraph 156)

36.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. (Paragraph 157)

Enforcement and monitoring

37.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. (Paragraph 162)

38.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:

39.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. (Paragraph 171)

40.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. (Paragraph 171)

41.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. (Paragraph 172)

42.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:

43.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. (Paragraph 176)

44. 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. (Paragraph 176)



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4 August 2016