Introduction
Sue was 19 years old and five months pregnant when she sought advice from her local CAB. Her employer of four years – a contract cleaning company – had refused to allow her to take paid time off to attend ante-natal appointments, and had now told her that she would not be getting any statutory maternity pay, and that if she wished to take maternity leave, she would have to resign her job and re-apply for it when ready to return.
Nadia was four months pregnant when she approached her local CAB. Her employer of three years – a newsagent – had summarily dismissed her the day after she had notified him of her pregnancy.
Debbie was three months pregnant when she sought advice from her local CAB. She had been working as a cashier in the local branch of a national chain of petrol stations for 12 weeks when she realised that she was pregnant. A few days after informing her manager of her pregnancy, she had been told not to “bother coming into work again”, as there was “not enough work” for her. However, within one week of her dismissal another woman had been recruited to do the same job.
Every year, tens of thousands of mostly low paid, non-unionised women workers like Sue, Nadia and Debbie seek employment advice from a Citizens Advice Bureau (CAB) in relation to their pregnancy and work. Hundreds have been unfairly (i.e. illegally) dismissed – or threatened with such dismissal – by their employer for no other reason than that they are pregnant, and wish to take up their legal rights to statutory maternity leave and pay. Some have, like Sue, Nadia and Debbie, been summarily dismissed immediately after informing their employer of their pregnancy, whilst others have suffered weeks or months of harassment, abuse and/or deliberate exposure to health and safety risks, all aimed at forcing them to ‘resign’ from their job.
Kathy sought advice from her local CAB when three months pregnant. She was extremely anxious about whether she would get maternity leave and pay from her employer of eight months – a recruitment agency – as, when she had informed her manager of her pregnancy, he had sworn at her and shouted “this is why we should employ men”.
Deepta, a mother of an eight-month old child and now pregnant again, had been working shifts in a local pizza restaurant for the past 18 months when she sought advice from her local CAB. Since Deepta had informed the restaurant’s owner/manager of her pregnancy, he had been re-arranging her shifts at very short notice and pressurising her to work at weekends, which he knew full well she was unable to do for childcare reasons. Deepta told the CAB that this had happened before to fellow workers who had become pregnant, and was the owner/manager’s way of “getting rid of pregnant women”.
Joy was six months pregnant and working in the local branch of a high profile, national chain of fashion shops when she sought advice from her local CAB. Her manager had been “unsympathetic” to her pregnancy, had conducted a health and safety risk assessment but had since refused to share or discuss it with her, and was insisting that she work on the sales floor, standing up, for four hours at a time without any rest break.
Many other women have simply faced indifference to their condition and/or a lack of understanding of and support for their changing health needs – including denial of their legal right to paid time off to attend ante-natal clinics, and a failure to conduct a health and safety risk assessment. Employers are required by law to conduct such a risk assessment in relation to a pregnant worker, and to take steps to prevent exposure to health and safety risks through the removal of hazards (or the implementation of controls), transfer to alternative suitable work or, if necessary, maternity suspension on full pay. But the evidence from Citizens Advice Bureaux indicates that many employers fail to comply with these obligations.
The employer of a woman who sought advice from a CAB in Kent – a large paper-making company – was insisting that she work extra hours to ‘make up’ for time taken off to attend ante-natal appointments.
A CAB in Berkshire reports being approached by a pregnant woman working for a dry cleaning company, and worried about the effect on her baby of the fumes from the dry cleaning chemicals. Her employer had refused to listen to her concerns, and was refusing to carry out a health and safety risk assessment.
A young woman, three months pregnant, who sought advice from a CAB in Kent was working as a shop assistant in a petrol station. Her manager had refused to allow her to take time off (even unpaid) to attend ante-natal appointments, was insisting that she continue to lift and carry heavy boxes of goods up a ladder, had refused to carry out a health and safety risk assessment, and was being “difficult” about her need to take frequent short breaks to go to the toilet.
Yet others have run into difficulty only upon their return to work from maternity leave. Some of these women have returned to find that their job has changed beyond recognition since going on maternity leave, or that their job has simply been given to someone else. And many others have had their reasonable requests to work fewer, different, or more flexible hours denied without good reason or due process by their employer, and so find it impossible to balance work and the demands of caring for their young child (or children).
A woman who sought advice from a CAB in Staffordshire was shortly due to return to work from maternity leave. Her employer of 16 years – a small engineering firm – had summarily rejected her request to reduce her working hours in order to spend time caring for her child, without reasons and without the meeting with her required by the ‘flexible working’ regulations introduced in 2003.
A CAB in Warwickshire reports advising a woman who had recently returned to work after maternity leave. Her employer of four years – a window manufacturing company – had summarily rejected, without reasons and without the required meeting, her formal request under the ‘flexible working’ regulations to reduce her working hours. The CAB reports that the client was “angry and frustrated because she is willing to work but feels she is being discriminated against because she has childcare commitments. Two of her former fellow workers have not returned after taking maternity leave, due to the employer’s unwillingness to offer part-time work”.
Often low skilled and nearly always low paid, many of these women are performing relatively unglamorous but often vital work in mostly small workplaces such as care homes, hairdressers, bars, restaurants and hotels, shops and other retail outlets, clothing and food processing factories, and contract cleaning companies. Many are working part-time, and/or at night or weekends, in order to meet family or other caring commitments. Indeed, for many, the daily juggling of such commitments with their need to earn an income is less a case of enjoying a good ‘work-life balance’, than of enduring a work-life compromise.
Very few of these workers belong to a trade union, and most lack a full understanding of their statutory workplace rights – let alone how to enforce them.[1] As a result, they are particularly vulnerable to pregnancy-related discrimination and unfair treatment by their employer.
Such workers make up a significant proportion of the UK labour market, and will continue to do so in the years ahead. As the consultation paper notes, “an increasing number of services are being provided on a 24/7 basis … and information technology is opening up new forms of access and provision. As people experience greater choice and flexibility throughout their lives, they are likely to want more choice and control over their work and family lives.” This is undoubtedly true, but of course someone has to provide these 24/7 services. And many of those who work for these service providers are low skilled, low paid and with poor terms and conditions of employment generally. In the words of the Prime Minister, Tony Blair MP, these are “the millions of hard working, low paid families who do the jobs that we all rely on”.[2]
Across the economy as a whole, recent research by the Equal Opportunities Commission (EOC) suggests that, each year, some 30,000 working women are dismissed, made redundant or treated so badly that they decide to leave their job as a result of their pregnancy. This amounts to one in 15 of the some 440,000 women who are pregnant at work every year. Overall, almost half (45 per cent) of the women surveyed for the EOC research said that they had experienced some form of discrimination by their employer because of their pregnancy, and a fifth (21 per cent) said that they had lost out financially as a result of this discrimination.[3]
This situation is far from new. As long ago as June 1992, in our report Not in labour, we described “a consistent pattern of women [being] dismissed because of pregnancy”, together with “hostile and uninformed employer attitudes to pregnancy”. And in our March 2001 report, Birth rights, we concluded there was still “widespread incidence of unlawful pregnancy-related dismissal or detrimental treatment”, especially amongst small employers in low profitability sectors of the economy. Whilst welcoming a number of policy initiatives then being proposed by the Government – many of which were subsequently implemented in April 2003 – Birth rights suggested that there was much more that the Government could do to safeguard the health of new mothers and their babies, to ensure equal opportunities in the labour market, and to encourage and assist more working fathers to take an active role in the care and development of their children.
On 28 February 2005, the Government published a consultation paper on proposals to further enhance the workplace rights of working parents.[4] Noting that “helping hard-working parents give their children the best start and give carers greater help is not only good for families but is good news for our economic growth and prosperity”, and that “many families often struggle to balance their caring and working commitments”, the consultation paper sets out a number of proposals. These include:
- an extension of statutory maternity pay, statutory adoption pay and maternity allowance from six to nine months from April 2007 (and to 12 months by the end of the next Parliament, i.e. by May 2010 at the latest);
- a new right for mothers to transfer some of their statutory maternity leave and pay to the baby’s (or babies’) father;
- new measures to improve communication between workers and their employers both before and during maternity leave, including reform of the periods of notice to be given prior to returning to work; and
- a possible extension of the existing right of parents of young and disabled children to request flexible working, to carers of sick or disabled adult relatives, and/or to parents of older children.
In the main, Citizens Advice warmly welcomes and supports these proposals. And we wholly endorse what the consultation paper says are the Government’s “key principles” in this area of policy: “to ensure that every child gets the best start in life and to give families more choice about how to balance their work and caring responsibilities”.
Along with many other organisations, Citizens Advice has long called for a level and duration of statutory maternity pay that enables all working women to take enough maternity leave to ensure the health and long-term well-being of their babies, and of themselves. And, despite the very welcome extension, in 2003, of statutory maternity pay from 18 weeks to the current six months, Citizens Advice Bureaux continue to report being approached by women who would like to take more than six months of maternity leave, including many who qualify to take up to six months of unpaid Additional Maternity Leave (AML), but who simply cannot afford to take such unpaid leave. Accordingly, the proposal to extend statutory maternity pay from the current 26 weeks to nine months, and eventually to 12 months, amounts to a substantial and welcome advance that we strongly endorse.
Similarly, the proposal to extend the existing right of parents of young and disabled children to request flexible working, to carers and/or to parents of older children, is very welcome. We hope that the Government will implement this proposal as widely as possible.
At the same time, however, we recognise that the implementation of these two key proposals will intensify the already significant compliance challenge for employers – and especially for small employers in low-profitability sectors of the economy, who tend not to employ a ‘human resources’ specialist who can assist managers on the administration of pregnancy-related absences and related matters (such as health and safety risk assessments, or flexible working). As noted at the start of this report, there is a deeply disturbing level of non-compliance by employers with the existing statutory provisions, and it is disappointing that this non-compliance is not addressed in the consultation paper. Because those employers who do not meet their existing statutory duties to their workforce are unlikely to comply with the more generous provisions proposed in the consultation paper.
Many of these employers simply lack the means and resources to adopt and follow the personnel policies and procedures necessary to ensure full compliance with statutory provisions that are – as the consultation paper openly acknowledges – extremely complex and difficult to comprehend. However, the evidence from the advice work of Citizens Advice Bureaux also demonstrates that much non-compliance by employers is deliberate, and that such unscrupulous or rogue employers can deny their workers their proper legal entitlement – to statutory maternity leave and pay, for example – with the threat of dismissal for those who object.
They can do so in the knowledge that the Employment Tribunal process – the only means of enforcing most employment rights, including the right not to be unfairly dismissed – is unduly legalistic and adversarial, and thus extremely daunting, especially to pregnant women, new and lone parents, very young and elderly workers, those with caring responsibilities, people with mental health problems, and other vulnerable or hard-pressed individuals.
In the case of pregnant women and new mothers, the Equal Opportunities Commission (EOC) has concluded that “the odds are stacked against them [pursuing an Employment Tribunal claim] at a time when they need to protect their own and their baby’s health, their career, and their income”. Being non-unionised, the great majority of low paid workers do not have access to the support, advice and representational services of a trade union, and ‘legal aid’ for basic advice in relation to the making of a Tribunal claim is not available to all but the very lowest paid workers. Every year, about one-third of all Employment Tribunal claims are withdrawn by the claimant before the case reaches a hearing, and research by the Department of Trade and Industry has found that in 51 per cent of such cases this is because the applicant considers there to be too much stress, difficulty, fuss or expense involved in continuing.[5]
For most low paid, non-unionised workers, the cost of legal representation at an Employment Tribunal hearing is prohibitive – there is no legal aid at all for such representation, and the resources of Citizens Advice Bureaux and other sources of free representation (such as community law centres) are extremely limited. Increasingly, claimants face intimidation from some employers’ legal representatives, in the form of unjustified threats to ask for ‘costs’ of up to £10,000 in the event that the claim is ultimately dismissed by the Tribunal.[6]
For low paid and non-unionised workers, therefore, pursuing an Employment Tribunal claim to a full hearing represents a significant challenge, and one that is likely to involve considerable investment of time and energy – resources that pregnant women, new parents and carers tend not to have in abundance. Furthermore, even where an Employment Tribunal claim is successfully pursued to its conclusion, a favourable ruling and the making of a financial award by the Tribunal can prove to be a hollow victory. In at least one in 20 such cases, the employer against whom the claim has been successfully brought simply fails to pay the resultant award.[7] For example:
A woman who sought advice from a CAB in Nottinghamshire had won an Employment Tribunal award of more than £6,000 in respect of pregnancy-related unfair dismissal from her job with a double-glazing company. However, the employer had since not paid any of the award, and had not responded to letters from the client.
A young woman who sought advice from a CAB in Essex had been awarded some £10,000 by an Employment Tribunal in respect of pregnancy-related unfair dismissal. However, the employer had since failed to pay any of the award, and had now gone into liquidation.
A woman who sought advice from a CAB in Norfolk had won an Employment Tribunal award of some £8,000 in respect of sex discrimination and pregnancy-related unfair dismissal from her job as a delivery driver for a home-improvement company, but had not yet received any of the award from her former employer.
In our view, the Government’s vision of a ‘flexible’ labour market underpinned by “an infrastructure of decency and fairness” will remain exactly that – a vision – so long as this reality persists for the millions of low paid, non-unionised workers in the UK economy. We believe that implementation of the proposals set out in the consultation paper must be accompanied by the creation – alongside the Employment Tribunal system – of a more accessible, pro-active and efficacious system of ensuring employer compliance with these and other statutory employment rights.
At the same time, we believe that more pro-active enforcement of statutory employment rights must be combined with more meaningful assistance – in the form of practical business support services – for those employers who face the greatest challenge in meeting their statutory duties to their workforce. For, as already noted, it is clear that much non-compliance by employers is non-intentional, or at least not deliberately exploitative, and stems from the employer’s ignorance or less than full understanding of the (complex) statutory provisions, and/or from a real or perceived lack of means to adopt the personnel policies and procedures necessary for compliance without damaging the profitability of the business. Whilst many (mostly large) employers have, as the consultation paper notes, responded to “changes in the labour market and family life” by recognising that “the success of their firm depends on being able to recruit and retain people from the widest possible pool of talent, and to develop the skills, creativity and imagination of all their staff”, a great many more have not.
These concerns are especially acute in relation to the consultation paper’s proposal of a new right for mothers to transfer a proportion of their maternity leave and pay to the baby’s father. For the evidence available suggests that, whilst in recent years there has been much welcome improvement in the attitude of employers to the maternity and parental rights of women, there has been markedly less improvement in the attitude of employers to the paternity and parental rights of men. Certainly, since the introduction in 2003 of the statutory right of new fathers to two weeks of paid paternity leave – a right that presents only a minimal compliance challenge to employers, even small employers – Citizens Advice Bureaux have reported dealing with a steady stream of enquiries from men who have been denied such paternity leave by their employer or who, due to the evident negative attitude of their employer, have been too afraid even to ask for it.
The following sections of this report set out our response to many of the consultation paper’s proposals, and our position on the Government’s various options for the final shape and implementation of the proposals. And the final section re-iterates our own proposals for a more joined-up system of advice and practical business support for small employers, together with the complementing of the Employment Tribunal system with a more pro-active (but educational rather than punitive) approach to compliance and, where necessary, enforcement of these and other basic workplace rights.
Extending statutory maternity and adoption pay
Under existing employment law and regulations, all pregnant working women who meet the legal definition of ‘employee’ are entitled to 26 weeks of ordinary maternity leave, regardless of how long they have worked for their employer.[8] Those who have worked for their employer for at least 26 weeks at the 15th week before the expected week of childbirth are additionally entitled both to 26 weeks of statutory maternity pay during their ordinarly maternity leave, and to 26 weeks of additional maternity leave.[9] However, this additional maternity leave is unpaid. [10]
In this context, we applaud the consultation paper’s acknowledgement that “unpaid [maternity] leave does not have the same protective effects [as paid maternity leave]”, such as “reduced levels of maternal depression, lower infant mortality, fewer low birth weight babies, more breastfeeding and more use of preventative health care”. And we warmly welcome the consultation paper’s recognition that the fact of additional maternity leave being unpaid “fails to provide a real choice for many women who do not have another source of income, such as extra pay from their employer, a partner in work or savings, to support them during [any] period of unpaid leave”. We might add that the same is true of the right, introduced by the current Government in 1999, to unpaid parental leave – a right on which, somewhat surprisingly, the consultation paper is disappointingly silent.
Accordingly, we warmly welcome and strongly support the proposal to extend statutory maternity pay (and statutory adoption pay) from the current 26 weeks to nine months from April 2007, and to 12 months “by the end of the next Parliament”, which means by 2010 at the very latest.
Reducing the complexity of the system
We also welcome the Government’s commitment, as set out in the consultation paper, to ensuring that this extension of paid leave is “done in as straightforward a way as possible” and that “complexities are removed from the system wherever possible”. Despite the Government having already taken steps to simply the system, it remains extremely complex, with several different sets of entitlements for different groups of new mothers and adopters. We suggest – as we did in our 2001 report, Birth rights – that one way of reducing this complexity would be to legislate to remove the legal distinction between ‘employees’ and ‘workers’.
With the growth in the use of ‘casual’, temporary and agency-provided labour, an increasing number of working men and women are now legally defined as ‘workers’ rather than ‘employees’, and thus lose out on a range of basic employment rights – including the rights to maternity, adoption, paternity and parental leave and pay, and to time off for ante-natal care. The Government has repeatedly expressed its desire to maintain, and even enhance, the ‘flexibility’ of the UK’s labour market, including the use of such employment relationships.[11] But in our view that flexibility must not come at the cost of denying a growing number of (generally low paid) workers their basic rights.
Maternity allowance
Some pregnant working women do not qualify for statutory maternity pay, even if they meet the legal definition of ‘employee’, because they have not worked for their employer for long enough (i.e. at least 26 weeks of continuous service at the 15th week before the expected week of childbirth). Such women are instead entitled to maternity allowance. They also do not qualify for additional maternity leave, and so are only able to take a maximum of six months’ ordinary maternity leave.
Unless this qualifying requirement for additional maternity leave is changed, the proposed extension of maternity pay would leave some women with an entitlement to nine (or, eventually, 12) months of maternity allowance, but only six months of leave. The consultation paper sets out three options for ensuring that women claiming maternity allowance are also entitled to the full nine (and, eventually, 12) months of paid leave:
Option 1: remove the requirement to have worked for an employer for a minimum period to qualify for additional maternity leave;
Option 2: abolish additional maternity leave and extend ordinary maternity leave from six to nine (and, eventually, 12) months;
Option 3: extend ordinary maternity leave to nine (and, eventually, 12) months, but with different rights of return depending on the amount of leave actually taken.
We urge the Government to implement Option 2. This would help to keep the system as simple as possible, to the benefit of employers, but would also involve a significant, justifiable and in our view very welcome enhancement of the legal rights of pregnant women.
During ordinary maternity leave, a woman is entitled to benefit from all her normal terms and conditions of employment as if she were at work, except for her normal pay. And, upon completing her maternity leave, she is entitled to return to the same job. During additional maternity leave, however, a woman is not entitled to all the benefits of her terms and conditions of employment – only certain elements apply. And, upon completing her maternity leave, she is entitled to return to the same job, unless it is not reasonably practicable, in which case the entitlement is to a similar job on terms and conditions that are no less favourable. The evidence from Citizens Advice Bureaux indicates that many women who take additional maternity leave find, upon their return to work, that their job has in effect been downgraded during their absence.
A woman who sought advice from a CAB in Hertfordshire was due to return to work, after taking additional maternity leave, in three months time. Her manager had recently contacted her to tell her that she would not be able to return to her part-time job of 30 hours per week, but that he would “try” to give her “a couple of hours of work per week”.
A CAB in Kent reports being approached by a woman nearing the end of her additional maternity leave. Her employer of two years had just contacted her to say that she would could not return to her part-time job of 17.5 hours per week, and could have only a job of ten hours per week. The bureau reports that “the client is deeply upset as she feels that, once she takes her childcare costs into account, it is not worth her working only ten hours per week”.
A woman who sought advice from a CAB in Norfolk was nearing the end of her additional maternity leave. Her employer of six years – a travel insurance company – had recently contacted her by telephone to say that they had given her job to her stand-in on a permanent basis, and that they would like her to take a lump-sum cash payment rather than return to an alternative job.
The small firms exemption
We welcome the consultation paper’s proposal to abolish the exemption for small employers (i.e. with five or fewer employees) in relation to automatic unfair dismissal in cases where the woman (or adopter) is not allowed to return at the end of additional maternity leave on the grounds that this is not reasonably practical. As the consultation paper notes, this exemption has not achieved its original aim of helping very small firms, but leaves scope for confusion about the right of return at the end of additional maternity leave.
The longer term: maternity, adoption and paternity pay
We welcome and strongly support the Government’s “ambition”, as set out in the consultation paper, to “increase the flat rate [of statutory maternity, adoption and paternity pay, and of maternity allowance] over time to ensure that all parents feel able to take the leave to which they are entitled”. We cannot see a better guiding principle for setting the level of such flat rate payments than this, and encourage the Government to undertake rolling research on take-up rates, so that progress towards this (somewhat distant) goal can be monitored and the levels of payment increased as necessary.
At just £106 per week, the current flat rate of maternity pay (as well as adoption and paternity pay) is less than 65 per cent of the National Minimum Wage (for a 35-hour week). And official figures indicate that only 20 per cent of women receive more generous contractual maternity pay from their employer. As the Maternity Alliance has noted, this is ”not enough to allow women in low-income households to make a genuine choice about how long they stay at home [on maternity leave]”. The Maternity Alliance recommends that statutory maternity pay (and also statutory adoption pay) be increased to “a living wage of £224 per week, based on a 35-hour week”.[12] We urge the Government to set this as its initial target for increasing the flat rate of statutory maternity, adoption and paternity pay over time.
Keeping in touch and planning ahead
Notice periods
Under the current system, the assumption is that a woman will return to work after taking her full entitlement of maternity leave: either six months (of ordinary maternity leave) or 12 months (six months of ordinary maternity leave and six months of unpaid additional maternity leave). However, a woman can return to work earlier than six (or 12) months, if she wishes, provided that she gives her employer at least 28 days’ notice of an earlier return date. The same applies to adopters.
The consultation paper suggests that, with the extension of maternity pay to nine months, and eventually to 12 months, there is a case for reviewing this notice period, so as to give employers more certainty about women’s intentions about their return date and allow them to plan accordingly. The consultation paper sets out three options, including increasing the notice period a woman must give her employer if she wants to return to work from maternity leave earlier than originally planned to two or even three months.
We urge the Government to reject all three of the consultation paper’s options, and to retain the existing notice period of 28 days. While we support the Government’s aim of giving employers more certainty about women’s intentions, so that they can plan accordingly, we believe that this would be better achieved by improving communication between employers and workers during maternity leave (see below), than by increasing notice periods.
The consultation paper further sets out a case for addressing the specific circumstances where a woman gives notice that she wishes to return to work early, but then changes her mind and does not return until a later date. We accept that this can result in the employer receiving very little notice that the woman will not in fact be returning on the early date, as previously notified.
However, there are many unexpected changes of circumstances – such as a sudden decline in the health of the mother or baby, including a bout of one of the various serious illnesses (such as meningitis) that are most common in young babies, or the emergence of a long-term health or developmental problem – that may, for perfectly good and understandable reasons, lead a woman who has agreed an earlier return to work to change her mind and decide that she wishes to take more of her maternity leave entitlement. With this in mind, we can foresee considerable practical difficulties with the consultation paper’s proposal that a woman should give the same amount of notice (i.e. up to three months, under the consultation paper’s options) that she will not be returning early as previously notified, as she did of that early return date. Accordingly, we urge the Government to give further thought to this proposal.
Improving communication between employers and employees
As the consultation paper notes, “effective communication between employers and [workers] is crucial in making maternity and adoption leave easy to manage”, and “establishing effective dialogue before maternity [or adoption] leave starts can help encourage better communication during the leave”. However, many employers fail to establish such a dialogue with their workers, and it is certainly the experience of Citizens Advice Bureaux that this can cause “problems further down the line”.
The consultation paper sets out three options to “support effective communication during maternity leave”:
- Option 1: Re-instating a specific point during maternity leave, after which the employer can contact the worker.
- Option 2: Spelling out in the law that an employer can make reasonable contact with an employee during maternity leave. As the consultation paper notes, guidance would be necessary to explain what is ‘reasonable’.
- Option 3: Increasing awareness and understanding by providing improved guidance and information to employers and workers on keeping in touch.
We understand the case for all three Options, but on balance prefer Option 3. This is a very difficult area in which any legal provision – such as that proposed in Options 1 and 2 – needs to be supported by effective guidance and information if it is to achieve its aim and not simply be a source of confusion for both employers and workers. We therefore believe that the best way to proceed is to keep the law as simple as possible, and to work to increase awareness and understanding of the benefits of keeping in touch, through the provision of accessible information and guidance on ‘best practice’.
Improving information and advice
We welcome and support the consultation paper’s assertion that “having easy access to good quality information helps parents plan their return to work and their options for balancing their work and caring responsibilities”. As the consultation paper notes, as things stand “parents have to go to a range of different places to get the information they need about maternity, adoption leave and pay, how to get working hours that enable them to meet their caring responsibilities, and what childcare is on offer in their local area”.
In this context, we have previously welcomed the launch, in May 2004, of the one-stop BusinessLink.gov website for employers, and we are currently working with the Government to help develop the employment rights-related content of a similar on-line resource for workers (the DirectGov website). And we applaud the work that the Government has done to improve the availability of information on childcare and other services for children, including through the local Sure Start programmes.
However, we have repeatedly expressed our concern about the withdrawal, since early 2004, of the Department of Trade and Industry’s widely-used range of paper booklets and leaflets on statutory employment rights, including its 120-page guide for “employers and employees” on maternity rights (PL958) and similar guides on adoption leave and pay (PL518), paternity leave and pay (PL517), parental leave (PL509) and the right to apply for flexible working (PL520). These booklets and leaflets have been unavailable in paper format to Citizens Advice Bureaux (and, more to the point, their employer and worker clients) since the exhaustion of pre-existing stocks during 2004, following the decision of the Department of Trade and Industry (DTI) in late 2003 to withdraw paper copies of nearly all of its series of employment rights guides, in favour of the texts being available on-line via the Department’s website only.
Until their withdrawal, Citizens Advice Bureaux commonly used these detailed and authoritative booklets and leaflets to complement and reinforce the information and advice given to clients – both workers and small employers – in face-to-face (or telephone) interviews. As already noted, much employment law is complex and is far from universally understood. Many employer clients reported that they found the detailed DTI booklets to be a valuable aid to understanding and ensuring compliance with their legal obligations to their workforce, while many worker clients found it helpful to take away a DTI booklet or leaflet to read and absorb in their own time, and – where necessary – show to their employer when asserting their rights. In 2003, the DTI distributed some 650,000 copies of the booklets and leaflets to Citizens Advice Bureaux, trade unions, and employer organisations.[13] Now, these organisations are deprived of this vital tool.
A CAB in Kent reports being approached in late 2004 by a pregnant woman who, early in 2003, when pregnant with her first child, had visited the CAB and been provided with a copy of the then current DTI booklet on maternity rights (PL958). The client had found that booklet “very helpful” when discussing arrangements for her maternity leave and pay with her small employer and, not having access to the Internet, was now after the most recent version of the DTI booklet (which had been substantially revised to reflect legal changes from April 2003).
Reporting its frustration at not being able to provide a pregnant client with a copy of the DTI booklet on maternity rights (PL958), a CAB in Lancashire notes that “most of our clients do not have home access to the Internet, and it simply isn’t good enough to suggest to a client, who may have taken time off work to visit us and has sat in our waiting room for some time that they go to a public library Internet console, just to join another queue and, if they have the necessary skills, download the information from there. The DTI’s decision to go solely on-line has been too precipitate and, until such time as Internet access is more universal and convenient, should be reversed.”
A CAB in Gloucestershire reports its frustration at being approached by a small employer in need of information and guidance on her legal obligations to her sole worker, who had recently notified her of her pregnancy, and being unable to supply a copy of the DTI booklet on maternity rights (PL958).
Reporting the case of a man, shortly about to become a father, who had been unable to obtain any information from his employer about statutory paid paternity leave, a CAB in West Sussex notes that “we advised the client of his rights, but had we had the DTI booklet [PL517] we would have given it to him to show to his employer”.
It is not only Citizens Advice Bureaux and their clients who are disadvantaged by the withdrawal of the paper booklets and leaflets. In March 2005 a Sure Start-funded adviser in Cornwall reported to Citizens Advice:
“I get a lot of queries from pregnant women and women on maternity leave about their rights and entitlements, and have been appalled that the relevant DTI booklet (PL958) is no longer available to order. I end up printing out reams of paper from the DTI website to give to clients. This is clearly disadvantaging those people who do not have access to the internet, and it seems to me that the DTI is discriminating against pregnant women and women with young children by not enabling them all to have access to information which may have a huge impact on their income and well-being and that of their children.”
As this adviser notes, the withdrawal of these booklets and leaflets in paper format has particularly disadvantaged those workers who are not computer literate and/or do not have easy access to the Internet. A Citizens Advice survey of CAB clients in June 2004 found that 73 per cent do not have access to the Internet, either at home or at work. Although many local libraries offer IT facilities with Internet access, this is not a realistic or convenient option for many workers, and the financial cost of printing off on-line versions of the booklets and leaflets can be a significant barrier to others. For example, at the standard charge rate of 15 pence per sheet, the cost of printing off the 120-page guide to maternity rights (PL958) would be £18.00.
Despite the Employment Tribunal Service, the Law Society, the Trades Union Congress (TUC), the Federation of Small Businesses, the Equal Opportunities Commission and others all having expressed concern about the DTI’s decision to withdraw the booklets and leaflets in paper format – on which there was no consultation – the DTI has so far rejected our repeated call for the re-instatement of at least those paper booklets and leaflets most widely used in the past, including the 120-page guide to maternity rights (PL958).[14]
In doing so, the DTI appears to have seriously under-estimated the extent to which these authoritative booklets and leaflets have contributed to the early resolution of workplace disputes and the avoidance of Employment Tribunal claims – a key plank of the DTI’s wider strategy on employment relations. To our mind, such benefits easily exceed the relatively low costs associated with producing the booklets and leaflets in paper format.[15] Summarising the value of the DTI booklets both to his clients and to the Employment Tribunal system as a whole, one CAB specialist employment adviser has noted that:
"In the past, when clients were referred to me by the bureau’s generalist advisers, they were frequently already in possession of the relevant DTI booklet, obtained either from an outside source or from their first visit to the bureau. I am quite sure that access to these booklets assisted clients properly to decide upon their next step – which may have been to pursue a course of action against their employer, or to abandon the issue. And those who decided to proceed and apply directly to an Employment Tribunal, without further assistance from us, will have gained a good idea of the issues and so will have been less likely to waste Tribunal staff time with incomplete or inappropriate claims.”
Another CAB specialist employment adviser has similarly noted that:
“The DTI’s PL booklets and leaflets were a simple way to give the worker an authoritative document that they could take back to their employer. In my experience, they were often effective in bringing the employer back on track, thus ensuring that internal procedures were fully exhausted before any recourse to an Employment Tribunal had to be considered.”
Against this background, it is somewhat ironic that the consultation paper favourably notes the Equal Opportunities Commission’s recent proposal for a paper leaflet on “employees’ and employers’ rights and responsibilities in relation to maternity leave and pay and flexible working” to be distributed at, for example, ante-natal clinics.[16] For ourselves, we warmly welcome and support the EOC’s proposal. But we hope that the Government – and the Department of Trade and Industry in particular – will recognise more generally the continuing value of comprehensive and authoritative information for employers and workers being available in paper format, as well as on-line.
We also support the idea, floated in the consultation paper, of a “one-stop information shop” for working families that could provide information and advice on workplace rights and working time options, as well as help with finding childcare or elder care services. As the then Secretary of State for Trade and Industry, Patricia Hewitt MP, noted in September 2004, in this area “the need – and the potential – are huge”.[17]
However, it is unclear to us how the consultation paper’s proposed ‘one-stop shop’ relates to existing and previously proposed services in this area, such as: the existing ‘parents centre’ website run by the Department for Education and Skills; the 3,500 ‘children’s centres’ offering “information on health, family support, childcare and other services” that, in December 2004, the Government committed itself to have in place around the country by 2010; and the ‘parents direct’ telephone service that, on 20 April 2005, the Secretary of State for Education, Ruth Kelly MP, announced the Government will consult on as “a sort of NHS Direct for parents”.[18] Nor is it clear to us what – if any – role the consultation paper’s proposed ‘one-stop shop’ might have in terms of access to legal advice, especially in relation to family and employment law.
But whatever form such a one-stop information shop eventually takes, and whatever services it covers, we urge the Government to resist the temptation to limit it to telephone or on-line resources and to accept that, if such a service is to reach all workers, including the low paid, then it must be provided through paper-based information resources and face-to-face advice, as well as through telephone help-lines and on-line resources.
Time off work for fathers
We applaud and strongly support the Government’s aim of making it easier for working fathers to take time off work to be with and care for their children. However, we are not at all convinced that the consultation paper’s proposal of a new right for mothers to transfer some of their statutory maternity leave and pay to fathers is the best way of achieving this aim, for several reasons.
Firstly, and perhaps most importantly, we note that the proposed right of working mothers to transfer some of their paid maternity leave to the father would be of no value whatsoever to those working fathers whose partner (i.e. the mother) is not working at the time of the child’s birth, and so does not have any maternity leave that she could transfer. One analysis of the available data suggests that some 40 per cent of the women who give birth every year are not in employment at the time of the birth, and so have no statutory maternity leave and pay that they could transfer to the father under the consultation paper’s proposals.[19]
Secondly, under the consultation paper’s proposals, working mothers and fathers would not be able to take time off work together, i.e. at the same time or for overlapping periods of time. To our mind, this would represent an unjustified restriction on parental choice – which, according to the consultation paper, the Government wishes to maximise. More significantly, it would prevent working mothers and fathers taking an extended period of paid time off work together (i.e. beyond that which could be achieved by using paid holiday entitlement) in order to care for a baby unexpectedly born with a disability, or to cope with the onset and consequences of one of the various serious illnesses (such as meningitis) that are most common in young babies.
Thirdly, we fear that the complexity of the proposed processes for the transfer of maternity leave from the mother to the father – a transfer that will, in the vast majority of cases, involve liaison between at least two employers – will present too great a compliance challenge to many small employers.
We have warmly welcomed the introduction, from April 2003, of the right to two weeks’ paid paternity leave and the right of fathers as well as mothers to request flexible working hours. However, it is clear that, since its introduction in April 2003, take-up by men of the right to paid paternity leave has been disappointingly low.[20] And yet, as the consultation paper recognises, it is also evident that “many fathers want to be able to spend more time helping to bring up their children” and to have “greater choices about balancing their work and caring responsibilities”.
The evidence from the advice work of Citizens Advice Bureaux suggests that two key factors in the low take-up of the right to statutory paid paternity leave are the relatively low, flat-rate at which it is paid, and the extent of both explicit and implied non-compliance by employers. Since April 2003, Citizens Advice Bureaux have reported dealing with a relatively small but growing number of advice enquiries from working fathers who have been denied statutory paid paternity leave by their employer or who, due to the evident negative attitude of their employer, have been too intimidated even to ask for it.
A new, first-time father who sought advice from a CAB in London was working as a chef at a large private hospital. He had recently asked to take statutory paid paternity leave, but had been told that any time off he took would be unpaid.
A CAB in Wales reports being approached for advice by a new father who had been told by his employer of 20 years that he was entitled to only three days of statutory paid paternity leave.
A man who sought advice from another CAB in Wales had been told by his employer of two years that if he wanted to take time off work following the birth of his child, he would have to use some of his paid holiday entitlement.
A father of three children, including a new baby, who sought advice from a CAB in Yorkshire had received only one week of statutory paid paternity leave from his employer of ten years, who had also refused to consider his request to work reduced hours (so as to enable his wife to return to work part-time at the end of her maternity leave).
In the vast majority of these cases, the client, when advised of his statutory right to paid paternity leave and how to enforce it (by following internal grievance procedures and then, if still necessary, by making and pursuing a claim to an Employment Tribunal) has decided not to pursue the matter. However great their disappointment at not being able to fully exercise their right to paid time off following the birth of their child, most simply do not feel that it is worth risking their relationship with their employer – and perhaps even their job – for the sake of just two weeks off work that, more often than not, would in any case involve a less than welcome reduction in family income at a time of added expense.
This and other evidence suggests to us that, whatever welcome progress has been made in recent years in terms of the attitude of employers to the maternity and parental rights of working women, there is significantly less acceptance by employers (and especially small employers in low profitability sectors of the economy) of the paternity and parental rights of working men.
Against this background, we are concerned that the necessarily complex processes for transferring maternity leave from the mother to the father would not only be poorly understood by both employers and working fathers, but would be less than warmly embraced by many small employers. We note that, in the draft Regulatory Impact Assessment appended to the consultation document, the Government itself predicts a take-up rate of only one per cent.
We believe that the aim of enabling more working fathers to take time off to be with and care for their children would be better achieved by increasing both the amount of statutory paid time off available directly to working fathers themselves, and the rate at which such time off is paid. And we believe this would be best done in one or both of the following ways:
- Increasing both the duration of statutory paid paternity leave and the rate at which it is paid (see also The longer term: maternity, adoption and paternity pay, on page 11 of this report).
- Transforming at least some (but ideally all) of the current statutory entitlement of working fathers to 13 weeks of unpaid parental leave (or 18 weeks in the case of a disabled child), to be taken between the child’s birth and its fifth birthday (or 18th birthday in the case of a disabled child), into an equivalent (or even enhanced) entitlement to paid parental leave. Clearly, this would require the current entitlement to parental of working mothers to be transformed in the same way.
But whichever way of enabling working fathers to take more time off to be with and care for their children is preferred, we believe that the Government needs to do much more to improve employer compliance with the relevant rights in the first instance, and to facilitate enforcement where this is necessary. As already noted, we believe that this requires the establishment – alongside and complimentary to the Employment Tribunal system (including ACAS) – of a more accessible and pro-active enforcement mechanism. Our proposals for such a mechanism – which in fact already exists in relation to the right to be paid at least the National Minimum Wage – are set out later in this report.
The notice period for paternity leave
In any case, we also urge the Government to consider reducing the amount of notice that men are required to give in order to take their entitlement to statutory paid paternity leave. Currently, the regulations require men to give their employers the same amount of notice that expectant mothers must give to their employers of their pregnancy in order to take maternity leave, i.e. they must inform their employers of their intention to take statutory paternity leave by the fifteenth week before the expected week of childbirth. In electing to impose this particular notice period, the Government had good intentions: to simply the system of maternity, adoption and paternity rights as much as possible (and so maximise the understanding of employers and workers alike) by harmonising the respective notice periods wherever feasible.
However, this means that men have to give their employer the same amount of notice of their intention to take just two weeks off work that expectant mothers have to give of their intention to take up to 12 months off work, even though it is clearly much easier for employers to manage/cover an absence of two weeks than it is one of up to 12 months. In contrast, in the case of paid holiday, the law requires a worker to give his (or her) employer no more than two weeks’ notice of an intention to take a two-week holiday from work.
Furthermore, the evidence from the advice work of Citizens Advice Bureaux indicates that this disproportionate notice period is resulting in some men losing their entitlement to statutory paid paternity leave, simply due to their poor awareness and/or understanding of the notice requirement and its rigid application by their employer.
Not being aware of the 15-week notice period required by law, a man who sought advice from a CAB in East Sussex had given his employer of 12 years only one month’s notice of his intention to take statutory paternity leave. The employer had denied him any such leave, on the grounds that he had not given the required 15 weeks’ notice.
Similarly, a man who sought advice from a CAB in Staffordshire had approached his employer about taking paternity leave 13 weeks before the expected birth of his child, but had been denied any such leave on the grounds that he had not given the required 15 weeks’ notice.
A CAB in West Midlands reports being approached by a man who had first become aware of his right to statutory paternity leave only a few weeks before the birth of his child. His employer had refused his subsequent request to take just one week of paternity leave on the grounds that he had not given the required 15 weeks’ notice.
Whilst we recognise the original case for the harmonisation of paternity and maternity notice periods, so as to keep the system as simple as possible, we are not persuaded that this has brought any significant benefit to employers. In the light of the experience since April 2003, we believe there is a strong case for substantially reducing the length of the notice period in respect of statutory paid paternity leave. We would suggest that the notice period for such leave should instead be harmonised with the law in respect of paid holiday, so that a man wishing to take two weeks of paternity leave should have to give at least two weeks notice to his employer, and a man wishing to take only one week of paternity leave should have to give at least one week’s notice. In this way, any benefit from ‘harmonisation’ might well be retained.
Paternity leave: flexibility
In 2002, when the Government was consulting on the then proposed new right to two weeks of statutory paid paternity leave, we were disappointed that the Government rejected the suggestion of Citizens Advice and others that men should be able to take such paternity leave as two separate (i.e. non-consecutive) one-week periods. Since the introduction of the right to paid paternity leave in April 2003, the law has provided that men must take such leave in one single block (of one week or two, with the second week being forfeited if only one week is taken).
Whilst we recognise that the Government’s aim was to minimise the administrative burden on employers, and in particular on small employers, we consider there to be many situations where the flexibility to take two separate, one-week periods of paternity leave would be greatly advantageous to the father and, indirectly, to the mother and baby. Furthermore, the relatively minor additional administrative burden to a small employer may well be offset or even outweighed by the benefit to the employer of spreading the worker’s absence from the workplace. We therefore urge the Government to remove this limitation on the taking of statutory paid paternity leave.
Time off to attend ante-natal appointments
We are surprised that the consultation paper includes no proposal to extend to fathers the existing right of working mothers to paid time off from work to attend ante-natal appointments. As long ago as January 2003, the Government stated that it was considering “whether to allow fathers time off to attend ante-natal care”, and it is deeply disappointing to us that the Government has not taken the opportunity provided by the consultation paper to move forward on this issue.[21]
As the Equal Opportunities Commission (EOC) noted in August 2003, “allowing fathers paid time off to attend ante-natal care [would] enable them not only to support their partners by sharing problems, anxieties and concerns, but [would] also help them to become emotionally involved with the baby from the earliest stages of development”.[22] In taking this view – which we endorse – the EOC cited a research study in the USA that found a positive correlation between attendance by fathers at ante-natal appointments and their continuing active involvement in the lives of their children three years after the birth.
Flexible working
Since April 2003, parents of young and disabled children have had a statutory right to request flexible (or ‘family-friendly’) working hours, with the law imposing a duty in their employers to consider their requests seriously. We warmly welcome the Government’s intention, as expressed in the consultation paper, to extend this right to “other groups”, namely “carers and/or parents with older children”. We understand that the Government is minded to extend the right to carers in the first instance, which we take to mean from April 2007, and to parents of older children at some unspecified point in the future.
As the consultation paper notes, the right to request flexible working hours appears to have been a significant success overall, with research by the Department of Trade and Industry, the CBI and others suggesting that some 800,000 families have used it to secure flexible working hours since April 2003. Such research also indicates that the number of refused requests has declined since the law first took effect, to the point where “just eight per cent of requests are now being turned down”. Indeed, the research suggests that employers are “showing an increasing willingness to go beyond the current scope of the law and to accommodate requests whenever they can”. The consultation paper suggests that this “may be because employers believe the right has either a positive or no impact on their business, and that implementation costs associated with the right are insignificant”.
Against this background, we can see little if any good reason not to be confident about the likely impact of extending the right to both carers and parents of older children, and are somewhat surprised by the Government’s apparent caution on this issue. As the then Secretary of State for Trade and Industry, Patricia Hewitt MP, noted in September 2004, extending the right to both carers and parents of older children would not only “dramatically increase the number of people benefiting”, but would “encourage far more employers to look at how reorganising working time could benefit their business as well as their employees”.[23]
Extending the right to carers
The consultation paper sets out four options for a “straightforward and easily understandable definition of carers”, the narrowest of which would give just 127,000 carers the right to request flexible working, and the widest of which would so benefit an estimated 1.8 million carers.
Whilst we recognise the need to have a workable legal definition of ‘a carer’ to whom the right to request flexible working would apply, we note that even the widest of the consultation paper’s four options would cover less than half of the estimated 3.5 million people who are currently working either full- or part-time and providing some form of unpaid care. And, of course, the figure of 3.5 million does not include those carers who would like to work part-time or flexible hours, but who, in the absence of any opportunity to work on such a basis (and lacking any right to ask to work on such a basis), have had to give up work completely in order to meet their caring obligations.
We therefore urge the Government to work with carers’ and employers’ organisations to develop as wide a definition of carer as is consistent with the Government’s laudable requirement that it be “clear, straightforward and easy to understand for both employers and employees”.
Extending the right to parents of older children
The consultation paper sets out three options for extending the right to request flexible working to parents of older children: extending it to parents with children under the age of nine; extending it to parents with children under the age of 12 (i.e. those of primary school age); and extending it to parents with children under the age of 17.
As it cannot easily be said that the need for working parents to work ‘family-friendly’ hours ends at any particular age of a child, we urge the Government to implement the third of these three options and extend the right to request flexible working to parents with children under the age of 17.
Pro-active enforcement of employment rights
As described in earlier sections of this report, there is overwhelming evidence that, faced with a deliberately exploitative or determinedly non-compliant employer, using the Employment Tribunal system to enforce their rights is simply not a credible option for many low paid and non-unionised or otherwise especially vulnerable workers.[24] Along with other organisations, we have repeatedly suggested that there should be an alternative remedy for those workers who are too afraid of victimisation or dismissal to even raise the matter with their employer, or who know only too well that they will simply be ignored and yet are daunted by the prospect of a lengthy, stressful, legalistic and quite possibly fruitless confrontation with their employer.
Rather than try and re-invent the wheel, however, we have suggested that the more accessible and pro-active compliance regime for the National Minimum Wage (NMW) – under which workers can, as an alternative to making a claim to an Employment Tribunal, make named or even anonymous complaints to the Inland Revenue’s NMW enforcement agency, which also uses tax credit and other data to conduct carefully targeted investigations and on-site inspections of employers suspected of non-compliance – should now be extended to many of the other basic, statutory workplace rights through the establishment of a Fair Employment Commission.[25]
Working closely with ACAS, the Small Business Service, the Health & Safety Executive (HSE), the forthcoming Commission for Equality and Human Rights (CEHR) and other governmental agencies, such a Fair Employment Commission could ensure a more joined-up system of advice, guidance and practical business support for small employers, as well as a more pro-active (but educational rather than punitive) approach to compliance and, where necessary, enforcement.
The Government has stated that it established such an accessible and pro-active approach to compliance with the National Minimum Wage because it did not want workers “to have to rely on taking action against their employer themselves, as intimidation or fear of losing their job could prevent a worker from making a complaint”.[26] Clearly, this argument applies as much to maternity, paternity, adoption and parental rights – and, indeed many other statutory workplace rights – as it does to the National Minimum Wage.
And, despite the Inland Revenue NMW enforcement agency’s narrow brief and extremely limited resources – it has just 120 staff in total – there is broad support for the Government’s view that the agency’s work since 1999 in ensuring compliance with the National Minimum Wage has been “a great success”.[27] For example, in their oral evidence to a recent enquiry by the Trade and Industry Committee of MPs, both the TUC and CBI characterised the NMW enforcement machinery as “a huge success story as an example of regulation”. And the Committee itself concluded that the NMW enforcement regime “would seem a model that might be extended beyond enforcement of the NMW to other areas of regulation”.[28]
Since 1999, the Inland Revenue NMW enforcement agency has dealt with some 15,000 complaints from workers and third parties, has conducted over 25,000 targeted investigations and inspections of employers, has revealed non-compliance with the National Minimum Wage by more than 10,000 employers, and in doing so has secured more than £20 million in arrears of wages for workers.[29]
As with the National Minimum Wage, a more broadly-based Fair Employment Commission, charged with ensuring compliance with a range of statutory workplace rights, would help ensure that good employers – that is, the vast majority – are not unfairly undercut by rogue employers, able to offer a cheaper product to their customers only by neglecting their legal obligations to their workforce. As the Hampton Review of regulatory inspection of employers has noted recently, “the elimination from gain from law-breaking is essential if businesses are to be allowed to operate on a level playing-field”.[30]
And, as the New Policy Institute has emphasised, “enforcement, which impacts on the ‘rogue’ end of any industry, is not the same as ‘more regulation’, which impacts on all”.[31] Only those employers that are in breach of one or more of their legal obligations to their workforce, and yet do not respond positively to the (even-handed and educational) intervention of the Commission’s compliance officers, would have any reason to fear enforcement action by the Commission.
A key benefit of such a pro-active approach to enforcement is that, acting at the level of the employer rather than the individual worker, it is capable of improving the lot of every worker in a workplace, rather than just the one who happens to complain. In our experience, a worker who is not being paid at least the National Minimum Wage, for example, is also likely not to be receiving his or her full entitlement to paid holiday, and to have received a written statement of his or her terms and conditions. And it is likely that many if not all of his or her co-workers are being similarly treated.
At the same time, as some but not all trade union leaders appear to have recognised, the trade union movement would benefit from the associated extension of a culture of enforceable rights, in which trade union membership is arguably more likely to flourish. The shift in jobs from manufacturing to service industries, and from larger to smaller workplaces, is – as the Secretary of State for Trade and Industry, Patricia Hewitt MP, has noted – “creating a tough challenge to unions to increase their membership, even when employment is increasing”.[32]
William Brown, Professor of Industrial Relations at Cambridge University and a member of the Low Pay Commission, has suggested that a Fair Employment Commission, charged with ensuring compliance with a basket of statutory workplace rights, would “help to maintain a floor of rights in areas of employment where unions have difficulty winning members, but which have employers who undercut and thereby threaten those workers in the same areas who are members. The enforcement of labour standards for the unorganised is an essential buttress for the labour standards of the organised. In short, British trade unions should see [a Fair Employment Commission] not as a potential rival, but as an essential complement.”[33]
Conclusions and recommendations
Citizens Advice welcomes and supports the Government’s commitment – as spelt out in the consultation paper issued on 28 February 2005 – to enhance the existing, statutory employment rights of working parents. There can be no doubt that substantial numbers of working parents – and, just as importantly, their children – will benefit from the proposed enhancements. But we also believe strongly that there will be significant gains for individual employers and, in turn, the economy as a whole.
With regard to the specific policy proposals set out in the consultation paper, we urge the Government to:
- Extend statutory maternity pay, statutory adoption pay and maternity allowance to nine (and, eventually, 12) months;
- Remove the legal distinction between ‘employees’ and ‘workers’;
- Abolish additional maternity leave and extend ordinary maternity leave to nine (and, eventually, 12) months;
- Abolish the exemption for small employers in relation to automatic unfair dismissal;
- Act steadily over time to increase the flat rate of statutory maternity, adoption and paternity pay, and of maternity allowance towards the “living wage of £224 per week, based on a 35-hour week” recommended by the Maternity Alliance and others;
- Retain the existing notice period of 28 days in relation to an earlier (or later) return to work from maternity or adoption leave;
- Act to improve the relevant guidance and information available to employers and workers, including the re-instatement in paper format of the DTI’s series of employment rights booklets and leaflets; and
- Extend the right to request flexible working to carers, and to all parents with children under the age of 17.
With regard to the proposed right for women to transfer some of their maternity leave and pay to the father, however, we urge the Government to ‘go back to the drawing board’ and consider how it might best enhance the individual rights of working men to take time off work to be with and care for their children. In addition, we urge the Government to:
- reduce the current notice period for taking statutory paid paternity leave, so as to bring it into line with the law in respect of paid holiday;
- increase the flexibility of statutory paid paternity leave; and
- introduce a right for men to take paid time off to attend ante-natal care.
However, we also urge the Government to recognise that its otherwise entirely laudable and welcome strategy to enhance the statutory employment rights of working parents (and carers) must include steps to ensure more universal compliance by employers, and more effective enforcement against rogue and deliberately-exploitative employers. Otherwise, many of the most needy and vulnerable workers in the economy may simply not benefit at all from the basic rights that the Government is now seeking to enhance.
More specifically, we urge the Government to extend the more accessible and pro-active compliance regime associated with the National Minimum Wage to these and other statutory employment rights, through the establishment of a Fair Employment Commission.
In doing so, we do not suggest that such a Fair Employment Commission could identify and inspect every non-compliant small employer in the UK. Clearly, given the realities of public expenditure, it could not. But that is not an argument for doing nothing. And, as the Work and Pensions Committee of MPs has noted recently, the available evidence suggests that the very existence of a pro-active enforcement regime considerably strengthens the incentive for self-compliance.[34] A Fair Employment Commission would help achieve the Government’s stated aim of encouraging small employers to “think pro-actively about the benefits of good practice and compliant human resources [policies]”.[35]
Nor do we suggest that a Fair Employment Commission could effectively cover all statutory employment rights (let alone contractual rights), or that it might somehow make the Employment Tribunal system unnecessary. On the contrary, a Fair Employment Commission would sit alongside – and so complement rather than replace – the Employment Tribunal system (including ACAS), just as the National Minimum Wage compliance regime does now.
For, whilst the more accessible and pro-active approach to compliance of a Fair Employment Commission would provide an alternative remedy for non-unionised and other especially vulnerable workers who are too afraid of victimisation or dismissal to even raise the matter with their employer, or who know only too well that they will simply be ignored, it would still be necessary and appropriate for many disputes and grievances – and especially those involving alleged breaches of contractual as well as statutory rights, or those involving allegations of discrimination – to be resolved by an Employment Tribunal (or, in some cases, the civil courts). In this context, a Fair Employment Commission would need to work very closely with the forthcoming Commission for Equality and Human Rights (CEHR).[36]
In short, a Fair Employment Commission would form just one part of a multi-layered approach to compliance and, where necessary, enforcement capable of making a reality of the assertion by the Chancellor of the Exchequer, Gordon Brown MP, that “the modern route to prosperity is not exploitation in the workplace, but fairness in the workplace”.[37]
[1] In two out of three private sector workplaces in the UK there is no trade union presence, and the New Policy Institute has estimated that only one in six low paid workers belongs to a trade union. See: Trade Union membership, Department of Trade and Industry/National Statistics, April 2005; and Howarth, C. & Kenway, P., Why worry any more about the low paid?, New Policy Institute, October 2004.
[2] Rt Hon Tony Blair, MP: speech to Labour Party conference, 28 September 2004.
[3] Pregnancy discrimination at work: a survey of women, Working Paper Series No. 24, Equal Opportunities Commission, February 2005.
[4] Work and families, choice and flexibility: a consultation document, Department of Trade & Industry, February 2005.
[5] Source: Findings from the 2003 Survey of Employment Tribunal Applicants, Department of Trade & Industry, August 2004.
[6] For further information, see: Employment Tribunals: the intimidatory use of cost threats by employers’ legal representatives, Citizens Advice, March 2004. In fact, Employment Tribunals may make costs awards even greater than £10,000, but such awards must be referred to a County Court or the High Court for assessment.
[7] For further information, see: Empty justice: the non-payment of Employment Tribunal awards, Citizens Advice, September 2004; and Hollow victories: an update on the non-payment of Employment Tribunal awards, Citizens Advice, March 2005.
[8] A person’s statutory employment rights depend to a considerable extent on whether he or she is defined by law as an ‘employee’ or a ‘worker’. In general, an ‘employee’ is someone who works for an employer under a contract of employment. A ‘worker’ is someone who works under either: a contract of employment (i.e. he or she is an ‘employee’); or any other contract, written or verbal, where he or she undertakes to perform any work or services for someone else (who is not a client or customer). Most maternity and parental rights apply only to ‘employees’, as defined by the Employment Rights Act 1996.
[9] In addition, to qualify for SMP, the woman must have average weekly earnings in the eight weeks up to the qualifying week at or above the lower earnings limit (LEL) for the payment of National Insurance contributions (currently £79 per week).
[10] Adopters are also able to take up to 12 months’ leave in total, with the second six months (of Additional Adoption Leave) being unpaid.
[11] See, for example: Full & fulfilling employment: creating the labour market of the future, Department of Trade and Industry, July 2002.
[12] In: baby manifesto, The Maternity Alliance, March 2005.
[13] Source: Hansard, House of Commons, 11 March 2004, col. 1677w.
[14] For further information, see: “The paperless waiting room” in the April 2004 edition of evidence, the quarterly social policy journal of Citizens Advice.
[15] The DTI has stated that it expects to save some £380,000 per year by withdrawing the PL leaflets and booklets in paper format. This amounts to less than 0.1 per cent of the DTI’s annual expenditure on employment relations of some £400 million.
[16] The EOC’s proposal is set out in Tip of the iceberg: interim report of the EOC’s investigation into discrimination against new and expectant mothers in the workplace, EOC, September 2004.
[17] In: Unfinished business: the new agenda for the new workplace, IPPR, 2004.
[18] www.parentscentre.gov.uk; Choice for parents, the best start for children: a ten-year strategy for childcare, HM Treasury/DTI/DWP/DfES, December 2004; and ‘Labour to aid struggling pupils’, www.bbc.co.uk, 20 April 2005.
[19] Source for 40 per cent figure: Wathan, J. (2003) Unpublished analysis of the General Household Survey 1996, 1998 and 2000, Centre for Census and Survey Research, University of Manchester.
[20] Based on statutory returns from employers, the Inland Revenue has estimated that only some 20 per cent of working fathers take up their right to statutory paternity leave (SPL). In 2003, the DTI predicted that 80 per cent of the 400,000 working men who become a father every year would take SPL. See: “Paternity leave taken by only fifth of fathers”, Financial Times, 26 July 2004.
[21] Balancing work and family life: enhancing choice and support for parents, HM Treasury/DTI, January 2003.
[22] EOC response to ‘Balancing work and family life: enhancing choice and support for parents’, Equal Opportunities Commission, August 2003.
[23] In: Unfinished business: the new agenda for the new workplace, IPPR, 2004.
[24] For further information on the specific issue of migrant workers, see: Nowhere to turn: CAB evidence of the exploitation of migrant workers, Citizens Advice, March 2004.
[25] Other examples of such a pro-active approach to compliance and enforcement include the work of the Health & Safety Executive (HSE), and that of the DTI’s Employment Agency Standards Inspectorate.
[26] National Minimum Wage Annual Report, DTI/Inland Revenue, September 2003.
[27] See, for example: Paragraph 5.19 of The National Minimum Wage: Fourth Report of the Low Pay Commission, Low Pay Commission, Cm 5768, March 2003.
[28] Paragraph 36 of UK Employment Regulation, Seventh Report of Session 2004-05, House of Commons Trade & Industry Committee, HC 90-1, March 2005.
[29] Source: Hansard, House of Commons, 27 October 2004, col. 1244-5w; and more recent information provided direct to Citizens Advice by the Inland Revenue.
[30] Hampton, P., Reducing administrative burdens: effective inspection and enforcement, HM Treasury, March 2005.
[31] Ibid, note 1.
[32] Ibid, note 17.
[33] Brown, W., “The Future of Collectivism in the Regulation of Industrial Relations", lecture to Manchester Industrial Relations Society, 6 May 2004.
[34] The Work of the Health and Safety Commission and Executive, Fourth Report of Session 2003-04, Work and Pensions Committee, HC 456-1, July 2004.
[35] Final report of the shared human resources pilots, DTI, August 2004.
[36] The CEHR – which the Government has said will begin operations in 2006/07 – will bring together the work of the existing equality commissions: the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC), and the Equal Opportunities Commission (EOC). It will also take responsibility for new laws outlawing workplace discrimination on religion or belief, sexual orientation, and age.
[37] Rt Hon Gordon Brown, MP: speech to Labour Party conference, 27 September 2004.
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