Clause 87 - Shared parental leave

Children and Families Bill – in a Public Bill Committee at 2:42 pm on 23rd April 2013.

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Amendment proposed (this day): 325, in clause 87, page 55, leave out line 12.—(Lucy Powell.)

Question again proposed, That the amendment be made.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

I remind the Committee that with this we are discussing the following:

Amendment 326, in clause 87, page 56, leave out line 3.

Amendment 327, in clause 87, page 59, leave out line 11.

Amendment 328, in clause 87, page 59, leave out line 46.

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

It is great to be back in Committee this afternoon. I appreciate the flexibility that you, Mr Havard, and Members have shown by allowing us to start this sitting a little later to enable me to deal with business on the Floor of the House regarding the Enterprise and Regulatory Reform Bill, which happily has concluded slightly earlier than we had expected.

I was responding to the hon. Member for Manchester Central on amendments 325 to 328 and the range of issues that she raised. One of those was that of single mothers, who will of course be entitled to 52 weeks of maternity leave and 39 weeks of pay and allowances, as they are now. However, she was right to say that maternity leave needs to be continuous and so cannot be split into chunks. The situation that the Government are in is that parental leave and pay must be equal between mothers and fathers to comply with equality law, whereas maternity leave is obviously specific to the needs of a mother having given birth. The flexibility of being able to apply parental leave to single parents would radically increase the overall cost of the policy, because it would have to apply to all men as well. At this time, it is obviously not easy to find the resources for that, as was the case with the daddy month that was proposed initially and to which we may come later on, in terms of taking a power to do it in the Bill. However, the current economic circumstances do not enable us to find the additional money to do that immediately.

In a general sense, given that we already had additional paternity leave and are now going to the next stage of shared parental leave, which is much more flexible, it is important to note that over the coming years this issue will change. What we are trying to see is a cultural change;  instead of it being the standard default option that mothers stay at home and look after children and fathers go out and be the breadwinners, this is about families working out what works best for them and breaking down some of those old stereotypes. There is no reason why fathers cannot be the main care-giver, if that is what works for a particular family. I believe there will be tweaks and changes in years to come; that will become more possible as the economy improves.

The amendments aim effectively to make parental leave a day one right for all employees, provided other conditions of employment are met. I totally understand the motivation behind the amendment. I think I explained this morning why we had the slight change to the “Modern Workplaces” consultation; that was about concerns that mothers would feel compelled to take less maternity leave. That is why we had the differences and did not have a day one right for parental leave under the new system. What we will have is a radical new system of leave that will enable working couples to take leave together and better manage their caring responsibilities with work commitments.

Importantly, this new system will also encourage more dialogue between employees and their employer. In some circumstances, that works swimmingly. No doubt the hon. Member for Manchester Central has had excellent conversations with the Whips on this, but it is not always that straightforward. Some women feel very nervous about those conversations with their employer and some employers do not know how to respond and the best way to manage that situation. Requiring parents who want to use shared parental leave to think about this in advance, to state when they would like the maternity leave to end and then what they would like to do in terms of sharing the parental leave is a trigger for a conversation with the employer. We need to ensure that that is properly supported through good guidance and information that is made available so that employers can also get the benefits of flexibility from managing their staff better. Parents will also get the advantage of that flexibility.

There is a balance between that flexibility for families and the certainty for employers. That is where the issue of the day one right comes in. The duration of service qualifying condition gives employers a greater degree of certainty that any new employee they take on will not immediately be absent from the workplace on shared parental leave. Obviously the details of how this duration of employment condition will work will be set out in secondary legislation, but I envisage that it will be similar to the current requirements around additional paternity leave, which would be that the employee must have worked for the same employer for 26 weeks by the 15th week before the baby is due. That always sounds a bit of a mouthful, but when I started looking at this, I realised that it basically means the employee was working there when the pregnancy began. That is the rationale for that.

Maternity leave is a day one right, as I think I mentioned a little earlier, for health and safety reasons, protecting the health of both the mother and the baby. The hon. Lady was right to say that adoption leave is also becoming a day one right, and we are making that specific change. That has been done very deliberately. For all of the reasons that were outlined in the earlier discussions on the Bill around adoption, we need to  make sure that prospective adopters are not prevented from adopting because they have not met the duration of service qualifying criteria. Unlike birth parents, at the moment, either parent could be prevented from taking any leave, and we could end up in a situation where no one was available to look after the child after adoption. The consequence could be that the child is either not adopted at all or remains in care for longer than is necessary. Earlier discussions referred to how even a few months longer in care, rather than moving into an adoptive home, can make a significant difference in a child’s life. That is the reason for the different treatment there. I hope that explanation helps the Committee.

The new shared parental leave system brings real benefits to working families. I want to ensure that these benefits can be enjoyed by the largest group of parents. But we need that balance to ensure that employers are confident to take on new employees. That is particularly relevant in the current circumstances, where unemployment concerns all hon. Members. I believe the duration of employment condition therefore achieves the appropriate balance between those objectives. I hope the hon. Lady will be reassured and withdraw her amendment.

Photo of Lucy Powell Lucy Powell Labour, Manchester Central

I thank the Minister for some of the reassurances she gave. As she said earlier, this is potentially an exciting piece of legislation in relation to shared parental leave. I hope that that excitement is matched by reality as we start to see the take-up of this option. The idea of my amendment is to enable as many parents as possible to take up parental leave, so on the basis that once this measure comes into effect—we might have all swapped sides by then, but let us not go down that road again—we can keep an eye on the uptake while being mindful of the Minister’s target of at least 8% take-up, which would be good. I welcome her view that this is the first of many steps to enable many more parents to take up this option.

I am also reassured by what the Minister said about self-employed fathers and I take on board her comments about single mothers. On the basis that we all want to see the culture change develop over the next few years, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I beg to move amendment 338, in clause 87, page 56, line 37, at end insert—

‘(7) Entitlements provided by regulations made under this section may be transferred to another family member or other related party in the following exceptional circumstances—

(a) where a mother is incapacitated;

(b) where a medical practitioner prescribes that the mother is unable to look after the child; or

(c) where the mother dies in childbirth.’.

We very much welcome the clause; my hon. Friend the Member for Manchester Central made a strong case for why it matters. The amendment would ensure that there is flexibility in the legislation for “exceptional circumstances”. It does not define those circumstances—the Government could set those out in regulations—but the purpose is to ensure that if children need to be looked after in exceptional circumstances, the parental leave enabled by the clause can be allocated to someone else, such as a grandparent, an aunt, an uncle, or even the father if he would not ordinarily qualify.

Those exceptional circumstances could be that the mother becomes incapacitated, very ill, or even dies in childbirth, or there is some other complication that requires urgent and immediate assistance but also longer-term assistance over the period of the parameters of shared parental leave. The amendment is supported by Working Families; it says:

“There may be occasions when it would be appropriate for another family member to be able to access shared parental leave and pay. For example, if a single mother is incapacitated and cannot care for her new child, it may be helpful if a grandparent or kinship carer to be entitled to leave and pay. At present they would only be able to take a limited amount of unpaid ‘time off for dependants’.

Similarly, there may be circumstances in couple families where the mother is unwell but the father does not qualify for shared leave to care for the baby. The Bill should make provision for exceptional circumstances when shared parental leave and pay could be transferred.”

In the examples Working Families gives, which are based on real cases that it has come across, it talks about families at a time when they are under pressure not just because of a new child, but because of other factors. We ought to be doing everything that we can to support families in those circumstances.

Photo of Lucy Powell Lucy Powell Labour, Manchester Central

I wanted to add in another exceptional circumstance for my hon. Friend and the Minister to consider. In the horrible event of a late pregnancy stillbirth, I know that even though many families may qualify for compassionate leave, they still struggle to get the necessary time off work.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I am grateful to my hon. Friend for raising that. From constituents who have raised several unfortunate cases such as that, and the charity Sands, to whom I pay tribute for its important work in this area, I know that we have one of the worst records in Europe for stillbirths; far too many families are still affected. In those circumstances, working commitments can make life even more difficult at a time of real tragedy; she is absolutely right to draw our attention to that.

Given the amount of concern outside this place about the flexibility that exists, the fact that the Minister is clearly keen to ensure that there is greater flexibility for families, and the fact that she has just poured water all over her Whip’s notebook, perhaps she would like to distract the Committee by giving us a firm commitment that she will take these commitments seriously and set out what she intends to do.

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

I am sure that that is not the best way to curry favour with the Whips. The amendment has been outlined by the hon. Member for Wigan. It is just Wigan, isn’t it?

Lisa Nandy indicated assent.

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

As a result of the many hours I have spent on the west coast main line, whenever I hear “Wigan”, I always think of Wigan North Western.

The amendment would enable a mother’s entitlement to shared parental leave to be transferred to someone else in the event of the mother dying in childbirth, being incapacitated or being medically unfit. The reason why we shall not accept the amendment and the key principle  of our argument concerns the meaning of shared parental leave. The clue is in the name: parental leave is about sharing leave between working parents—the mother and the father—or, in some circumstances, the mother and her partner.

If the mother dies in childbirth, there are already provisions in the Bill that will enable us to draw up exceptions. Such circumstances are horrendous for us to contemplate; none the less they need to be considered, and it might make sense for the leave to be transferred to the father. New sections 75K(1)(g) and 75F(16) of the Employment Rights Act 1996 will vary the conditions in circumstances that involve death or incapacity, when a mother and her partner have become entitled to shared parental leave or, in some cases, under new section 75F(16), which covers the entitlement of the mother’s partner to shared parental leave in cases when the mother dies, but shared parental leave has not yet been triggered. We obviously envisage using such powers to deal with a range of different circumstances that will be set out in regulations.

In cases of stillbirth—no one could help but feel anything but utmost sympathy for those who go through such an appalling experience—women will remain entitled to their 52 weeks of maternity leave, although there is not the trigger for the shared parental leave in respect of a child who has to be looked after. However, in circumstances when shared parental leave has already been triggered and, unfortunately, the child dies, that parental leave can continue.

We do not expect entitling parties who are not parents to share parental leave. Although we have provision under the new sections to make regulations for extenuating circumstances, we expect that that would involve the transfer of leave between parents in a way that was not envisaged, because of death or incapacity. I am sure that we would want to look at the circumstances if the parent were sectioned, for example.

I accept the important role that grandparents, uncles, aunts and family friends play in a child’s life—indeed, I should declare an interest as a dedicated Aunty Jo—but shared parental leave is conceived as being shareable between the parents or the mother and her partner. In addition to creating choice in families, the issue is also about facilitating greater involvement of the father, in particular. To pick up on the culture change argument that we discussed when debating the previous set of amendments, we favour encouraging the father or other parent to be really involved in the early stages. As members of the Committee will be aware, there is strong evidence that the early engagement of fathers in caring for their children leads to positive outcomes for children, including enhanced educational attainment, higher occupational ability, lower criminality, improved self-esteem, improved behaviour and better child relationships. It is for those reasons why we want to encourage, in particular, the input of the other parent.

It is worth bearing in mind that an adult with parental responsibility for a child under the age of five or a disabled child up to 18 years will also be entitled to take up to 18 weeks’ unpaid parental leave to care for the child. In the case of grandparents and other family members, there is time off to care for dependants and, in particular, under later changes in the Bill, the extension  of the right to request flexible working to everyone should also help to deal with such circumstances. It is right that such a provision should no longer apply just to parents and people who fit specific criteria, because there are a range of reasons why people want such a right. One of those reasons is grandparent responsibilities. On that basis, I hope the hon. Member for Wigan withdraws her amendment. No doubt she will send a well-argued contribution to the ongoing consultation.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education) 3:00 pm, 23rd April 2013

I am grateful to the Minister for taking those concerns on board. I welcome what she said about the flexibility that will be built into the forthcoming regulations and that shared parental leave will continue in the awful event of a baby dying. Notwithstanding that, she is aware, as I am, that we need to do much more to support grandparents and other kinship carers. We have already debated that in Committee, and I expect it will receive more attention as the Bill progresses through Parliament. I, like others, will want to return to the issues. Notwithstanding that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

With this it will be convenient to discuss Government amendments 276 to 278.

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

We are in for a treat with this group of amendments, which refine the drafting of the legislation and the cross-referencing between different sections. I was not joking about the treat. Amendments 275 and 276 ensure that the powers to make regulations specifying the meaning of “relevant amount of time” relate to the sections that confer the entitlement to shared parental leave for birth and adoption. As the Bill is currently drafted, those powers relate to a specific subsection. In light of those changes, amendments 277 and 278 amend the cross-referencing to the powers. I hope that hon. Members will agree that the amendments are necessary, if not the most exciting thing that we will discuss, and will support them.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I am grateful to be able to join in the excitement of these Government amendments. I want to put a concern to the Minister on what she intends to do in relation to “relevant amount of time”. I have no argument with giving the Secretary of State the power to specify that when determining how much shared parental leave is available, but could she tell us, before we agree to support the amendments, whether she intends to reduce the amount of time that is considered relevant, or what analysis they have done? How do they intend to bring it forward?

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

Indeed. The amendments, as I have explained, are important for a technical reason and refine the drafting. They amend new sections 75F and 75H in clause 87, which set out the regulations that will be made and, in particular, the exceptions and details within them. The amendments relate to the 52 weeks that will be taken as maternity leave, which is not being changed. We are keen to ensure that women do not lose their entitlement to maternity leave.

We have an ongoing consultation to look at the administration of shared parental leave and, in particular, the time periods allowed for mothers and fathers to give notice of when they will take shared parental leave—it is currently suggested that that period will be eight weeks—and how long that will need to be discussed with the employer. We think a two-week negotiation period for that would make sense. That is still being discussed, so I say that for the benefit of the Committee; it is not set in stone.

We are looking carefully at all the issues to ensure that there is enough notice for employers and that a genuine discussion can take place. A pattern of leave may be proposed that could be tweaked to help the employer, and the parents may be happy with that. Alternatively, a pattern of leave might not be accepted and that may have a knock-on effect on the other parent. We need to ensure that all the time limits are properly set out in regulations, and we will do that. I therefore hope that the amendments will be added to the Bill.

Amendment 275 agreed to.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

Having disappointed a load of lawyers because of a load of work that they will not now get, we come to amendment 331. I call Lisa Nandy.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I beg to move amendment 331, in clause 87, page 57, leave out lines 35 and 36 and insert—

‘(8) Regulations under section 75E may provide for the taking of leave under section 75E in a single period, in non-conclusive periods, or in periods shorter than the period which constitutes, for the employee, a week’s leave.’.

Amendment 331 would allow shared parental leave to be taken on a part-time basis rather than, as is currently proposed, in blocks of only a week. The original “Modern Workplaces” consultation proposed that parents might take the new form of leave in

“smaller chunks or on a part-time basis” if their employer agreed. However, the Bill currently provides only that shared parental leave must be taken in blocks of at least a week at a time, which reduces the flexibility available to parents and may reduce the likely take-up of more flexible arrangements.

As the Fatherhood Institute has rightly pointed out, that rules out the possibility of a phased return to work for mothers. In order for both parents to take their shared parental leave in blocks, they will need to seek the agreement of both their employers. Many employers may find it difficult to agree to a week-on, week-off type of arrangement as providing cover will be difficult. Even if one employer agreed, the other might not, or might propose a different pattern. As the institute has pointed out, childcare arrangements do not easily lend themselves to weekly leave patterns.

However, part-time leave and part-time pay may have significant benefits for families, particularly those on low incomes who would like to extend the time that they can spend at home, but cannot afford to have no income. As the Minister will know, maternity leave is currently 52 weeks long, but only 39 weeks are paid. Allowing part-time leave to be topped up by wages might allow low-income parents to transition gradually back to work.

As we heard from Working Families during the oral evidence sessions, some of the high street employers it has spoken to have said that one of the effects of the recession has been that low-paid women are taking much shorter maternity leave, which has an impact on their ability to stay in work in a healthy way and not take time off with illness, as well as on their long-term retention. It also must surely have an effect on the child. Many good employers already allow employees to come back to work after maternity leave on a gradual basis, which helps with handover periods from the locum cover. It may also be beneficial in settling children into new childcare arrangements on a gradual basis.

The original consultation suggested that part-time leave

“could provide parents with helpful flexibility in their time off to care for their children and also reduce the impact of leave on businesses by allowing their employees to return to work for busy periods without forfeiting leave entitlement. This could be particularly helpful where employers have not secured cover or to ease the parent back into work towards the end of their leave.”

It also stated:

“We believe that greater flexibility will be a significant step in promoting genuinely shared parenting. It will also help to strengthen new parents’ attachment to the labour market, as giving them more choices over how they organise their time will widen the employment opportunities available to them. This would help low income parents with a phased return to work.”

We are disappointed that the final proposals have not been able to deliver such flexibility. The amendment would allow future regulations to introduce part-time leave, which would be preferable to amending primary legislation.

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

As the hon. Lady has set out, amendment 331 intends to enable shared parental leave to be taken on a part-time basis. I share her belief that, when they return to work after having a child, many parents find it helpful to do so on a part-time basis. At such an early stage, that can be pretty important in juggling new responsibilities with work responsibilities. She also made the financial point that many families find it difficult to take off as long under maternity leave as they perhaps would like because of financial pressures. I would like to set out what is already in place that helps to deal with some of those issues and then return to a potential way forward.

We want a system where if both parents want to work part time and their employers agree, they can do so, and that will be manageable for employers to operate. One way that parents will be able to come back to work will be by putting in a request to work flexibly; not only are we making that possible for more people—it was already available for parents—we are making the system simpler, so that requests for flexible working will be dealt with more swiftly, rather than requiring many weeks. That should mean it is easier for parents to use.

In the consultation, we also propose extending keeping-in-touch days to shared parental leave. Those days can also be used to assist in part-time working and to help parents keep in touch with their employer while on leave without sacrificing their shared parental pay. In case Members are not familiar with keeping-in-touch days—KIT days, as they are often known—they already exist in maternity leave provisions and allow employees to come back for up to 10 days during maternity leave without ending that leave. They enable people to keep their hand in in the workplace and understand what is going on. It is also recognised that returning to work after having children can often be a point when people feel a lack of confidence, as they have been out of the labour market for a while; it can be somewhat daunting for new mothers, and KIP days help ease the transition.

We propose extending the concept to parental leave; the proposal in the consultation is for 10 days for each parent. Those days can effectively be used to work part time on return to work, over a period of a few weeks. Shared parental leave and statutory shared parental pay could still be used in a one-week block, but parents could agree to work for a couple of days in that week. That could be used to test a new working pattern that parents might want to adopt when they return to work; it would also mean that they would receive statutory shared parental pay for that week. In addition, some employers will make sure that they can pay for keeping-in-touch days. Keeping-in-touch days therefore deal with some of the challenges that have been outlined.

It will of course be up to an employer and employee to decide whether they want to use keeping-in-touch days, and whether the employee will be paid for working those days above the statutory pay level. However, the option is open to employers, and enables them to reach agreement about the best way forward. I mentioned that 10 keeping-in-touch days have been proposed in the consultation in addition to the existing 10 days during maternity leave. It is open to hon. Members to send in their views on whether that would be helpful.

Solutions already exist, then, for parents who want to work part time while on shared parental leave. Also, when returning to work properly, parents often use holiday they have accrued while on maternity leave to work part time but be paid for more than the part-time hours they are working, by taking that holiday on a weekly basis. There are different ways of dealing with the situation. I say that because the issue is not as straightforward and simple as saying that we should make it possible to take shared parental leave in any kind of blocks. Payroll systems operate on that kind of weekly basis, and so we would be asking for significant change in terms of administration. Our aim is to keep things as simple as possible.

The key question in my mind is what the system proposed in the amendment would offer that keeping-in-touch days and the other solutions I have outlined do not. I am sympathetic to looking at the issue with an open mind; we are consulting on the administration of the scheme and I am happy to hold further discussions with hon. Members on this issue. However, for me, the key ask is what would be gained from that extra complexity that is not currently possible through the extra use of keeping-in-touch days—indeed, if hon. Members felt  that we should include more keeping-in-touch days, that option is open to the Government through the consultation. I am keen to explore such issues, although I do not think that primary legislation would be the best way to do so. I welcome the opportunity to debate the best solutions to enable parents to go back to work in the way that suits them best.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I found the Minister’s response incredibly helpful. I am grateful to her for taking this issue so seriously, and for drawing the Committee’s attention to some of the support that already exists. She will probably know that a wide alliance of organisations has expressed concern to Committee members on this matter, including Maternity Action, the Fatherhood Institute, Working Families and the TUC. I very much welcome the way in which the Minister is approaching this issue and her willingness, through the consultation, to look at a number of different options for addressing the concerns that those organisations have raised. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 276, in clause 87, page 61, line 24, leave out

‘made by the Secretary of State’

and insert ‘under section 75G’.—(Jo Swinson.)

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I beg to move amendment 329, in clause 87, page 64, line 17, leave out ‘may’ and insert ‘shall’.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

With this it will be convenient to discuss the following:

Amendment 330, in clause 87, page 64, line 21, leave out ‘may’ and insert ‘shall’.

New clause 50—Right to return to the same job after shared parental leave—

‘(1) An employee who returns to work after any period of—

(a) ordinary maternity leave;

(b) ordinary adoption leave;

(c) paternity leave;

(d) shared parental leave of 26 weeks or less; or

(e) parental leave of four weeks or less, which was a period of isolated leave, or a consecutive period of any statutory leave of 26 weeks or less is entitled to return from leave to the job in which the employee was employed before the employee’s absence.

(2) An employee who returns to work after any period of—

(a) additional maternity leave;

(b) additional adoption leave;

(c) parental leave of more than four weeks; or

(d) a consecutive period of any statutory leave of more than 26 weeks is entitled to return from leave to the job in which the employee was employed before the employee’s absence, or, if it is not reasonably practicable for the employer to permit the employee to return to that job, to another job which is both suitable for the employee and appropriate for the employee to do in the circumstances.

(3) The reference in subsections (1) and (2) to the job in which an employee was employed before the employee’s absence is a reference to the job in which the employee was employed—

(a) if the employee’s return is from an isolated period of statutory leave, immediately before that period began,

(b) if the employee’s return is from consecutive periods of statutory leave, immediately before the first such period.’.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

The purpose of the amendments is to ensure that we replicate in the new shared leave measures the current employment protections afforded to women on maternity leave, adoption leave or additional maternity leave.

It is important to set the context. We are concerned about the high levels of discrimination against women who are pregnant or on maternity leave, so we believe it is vital to replicate in the Bill the current protections available to women in respect of both the right to return after leave and protection in redundancy situations. The Government should send a strong message to employers that maternity discrimination is illegal and will not be tolerated.

The right to return after a period of ordinary maternity leave or additional maternity leave is a right to return to the same job on the same terms and conditions as before leave was taken. The right to return after a period of additional maternity leave is the right to return to the same job on the same terms and conditions unless that is not reasonably practicable, in which case the employer must offer the employee a suitable alternative job on similar terms and conditions—bear with me, Mr Havard; it does get a bit better. It is unusual for it not to be reasonably practicable to give women their job back, unless the post is made redundant. Failure to allow a right of return may give rise to a claim for automatic unfair dismissal and sex discrimination. In redundancy situations, regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 says that women on maternity leave must be offered any suitable alternative vacancy. Women do not have to apply or be interviewed for any such vacancy, but should be offered it over their colleagues. If a suitable vacancy exists, but is not offered to a woman on maternity leave, she may have a claim for automatic unfair dismissal and sex discrimination.

Maternity rights and employment regulations that allow families and parents to balance work and family responsibilities have been key drivers in giving women greater access to work and an independent income. Over the past few decades, thanks in no small part to changes to workplace protections, women have entered and stayed in the labour market in unprecedented numbers, but there is still far to go. Our workplaces have not yet adapted to meet the needs of this changing and much more diverse work force.

Photo of Lucy Powell Lucy Powell Labour, Manchester Central

I do not know whether my hon. Friend saw a poll that came out in March which showed that, despite all the legislation that already exists, four in 10 women lose their job or have their job changed while they are on maternity leave.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I am grateful to my hon. Friend for drawing the Committee’s attention to that. Returning to work can be extremely difficult for women, for some of the reasons the Minister outlined. They may have been away from the workplace for some time and things may have moved on, or, having been completely absorbed  in something else, they have to come back and find their feet and perhaps their confidence again. Returning to work can be extremely difficult for a number of reasons, but it can be particularly hard if women have to argue the case for fair treatment.

Women pay a penalty in the workplace as a result of spending time away from the labour market to have and care for children. That time away often negatively affects their career prospects and earnings. That motherhood penalty helps to keep the glass ceiling intact. It reproduces gender stereotypes about women as the so-called caring sex that fuel occupational segregation, so jobs end up being characterised as men’s or women’s work, to the detriment all of us in society. For too many women, it still culminates in pregnancy discrimination in the workplace. One of the cumulative impacts of the motherhood penalty is ultimately a lack of women in positions of power in all quarters of political, public and professional life. I am pleased to note, however, that in a recent “Woman’s Hour” poll the Minister was noted as one of those in a position of power. As such, I hope that she will use that power to help to break the glass ceiling for other women—I am sure she will.

In 2005, even before the recession began, the Equal Opportunities Commission estimated that up to 30,000 women lost their jobs owing to pregnancy discrimination each year. There has been no similar research into the incidence of pregnancy discrimination following the economic downturn, but all indicators suggest that it has increased significantly. At times of austerity when employers cannot afford to take perceived risks to making profits and growing their businesses, I and many of the organisations who work in this field think that discrimination against women is likely to rise as women of child-bearing age appear—I say appear, because I simply do not think that this is the reality—to employers as the riskier, less affordable choice.

We have evidence that many women are subject to discrimination while pregnant or on maternity leave. The Working Families helpline 2012 report provides evidence of a hardening of attitudes among employers and more blatant discrimination taking place. That includes women being sidelined or left out when promotions are being considered, being demoted on return from maternity leave, and in some cases suffering harassment, and pregnant workers being sacked.

Working Families gave me a couple of examples. The first was a caller with four years’ service as a cleaner who called the helpline when she was seven months pregnant. She had been off sick with a pregnancy-related illness and had planned to go on maternity leave in two weeks’ time. She was surprised to find that her name was not on the rota for the week and that no shifts had been assigned to her. When she rang her employer about that, they said that she had to agree to take three months of maternity leave, or they would send her a P45. Similarly, a caller who had been in an acting-up position before she went on maternity leave was told that that position was no longer available to her on return and she should return to the lower level post. The decision had been taken months ago but had not been relayed to her at the time, nor was she involved in any consultation. She also told the helpline that the need for work at that acting-up level was ongoing, so it was simply a decision about her that had not been relayed to her.

Those cases illustrate the points that the Minister and my hon. Friend the Member for Manchester Central have alluded to. A recent survey commissioned by a law firm, Slater and Gordon, found that one in seven of the women surveyed had lost their job while on maternity leave, 40% said that their jobs had changed by the time they returned and half reported a cut in hours or demotion. More than a tenth had been replaced in their jobs by the person who covered their maternity leave.

The current context of austerity and deregulation also matters. Recent Government announcements threaten to impact on the rights of pregnant women and new parents in the workplace: for example, from 2013, women who take a pregnancy discrimination claim to an employment tribunal will face fees of £1,200, which will deter a large number of women from seeking to uphold their rights, and the Government’s employee shareholder proposals could result in the reduction or removal of historical protections for women in the workplace. That cannot be right.

I ask that the Minister, alongside implementing the shared parental leave system, agrees at least to undertake an inquiry into pregnancy discrimination and systematically to collect and monitor relevant data to identify patterns and frequency of discrimination against women in the workplace, so that we can understand the situation and determine how we can move forward. A wealth of anecdotal evidence illustrates that that situation is ongoing and I am sure that the Minister agrees that that is simply not acceptable in this day and age.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

Having spent 25 years as a trade union official, not only did I follow every word that you said, but I understood it all as well.

Photo of Jo Swinson Jo Swinson The Parliamentary Under-Secretary of State for Women and Equalities, The Parliamentary Under-Secretary of State for Business, Innovation and Skills

I will speak first to the amendments and then deal with the wider problem of pregnancy discrimination, which the hon. Lady is right to raise. First, I hope to reassure the Committee about amendments 329 and 330, which relate to the Secretary of State making regulations to deal with redundancy and dismissal in relation to shared parental leave. This is one of those great Committee occasions in Committee when we discuss a single word and whether we should use “may” or “shall”. Of course changing a single word can often result in a very different meaning, and I suspect these amendments were tabled to ensure that the Government bring forward regulations on what the rights and provisions should be for people returning from shared parental leave. I assure the Committee that the Government do intend to make those regulations. The wording in the Bill mirrors the wording in existing maternity legislation, and given that the Government laid regulations on those issues, there is no reason to think there would be any difference here.

New clause 50 is designed to introduce into primary legislation a model to determine the terms and conditions of an employee returning from shared parental leave. I understand the issues around discrimination against parents taking leave and the desire to have proper protection in place. It is true that employment protections for women on or returning from maternity leave have been extremely important in giving women the confidence  to take off the time that they need after having their baby. I want to ensure that any parent who wants to take shared parental leave has the confidence to do so.

I think everyone in the Committee will agree that we need to get the protections right, and I will set out how the provisions on redundancy and dismissal, and the right to return to the same or similar job on return from shared parental leave, will work in secondary legislation. That is the way that it is dealt with currently and so I can give the Committee a firm reassurance today that we will make those regulations. The shared parental leave administration consultation is ongoing. It is more appropriate that the details of the system are dealt with in secondary legislation but I will talk a little about how we may approach this.

Dealing first with redundancy and dismissal, under the current arrangements for fathers on additional paternity leave, if a redundancy situation arises while a father or partner is on additional paternity leave and it is not practicable for the employee to return to their old job, they must be offered a suitable vacancy in the organisation if there is one available. I anticipate making similar provision for parents on shared parental leave. The right to return to the same or similar job in the new system is more challenging. Currently, women returning from ordinary maternity leave or men returning from additional paternity leave generally have the right to return to the same job. Women returning from additional maternity leave have the right to return to the same job or, if that is not reasonably practicable, a similar job. So provided that the duration of the leave is less than six months, employees have the right to return to the same job. In practice, 84% of women who return to work from maternity leave come back to the same job with the same employer. It is important that we get the protections on the type of job to which an employee is entitled to return absolutely right. That can have a significant impact on their decisions.

The main difference between the current system and the new system is that it will be possible to take the leave in chunks rather than in one continuous block. We need to design a system that gives employees an appropriate level of protection in that new model. This has been discussed at length with stakeholders and we are consulting on the specifics within the consultation, because obviously there are different options such as doing it on a time-elapsed basis or putting different chunks of maternity and parental leave together. We want to seek views on the options before deciding what to put in secondary legislation. I hope that I have convinced the hon. Lady that primary legislation is not the best place for this provision.

The hon. Lady raised the wider issue of pregnancy and maternity discrimination. She is quite right that this is unacceptable; there is just no excuse for it. If our society is to use the talents of all our potential work force properly, that means using the talents of both men and women. We must not hark back to a century ago, when as soon as woman married and could potentially have children, her contribution to the labour market was over. As a country, we cannot afford to be in such a position. We cannot deal with the economic challenges we face without properly using the talents of women in the workplace, which means that we must deal sensibly with maternity. We must think about the future of the  human race and make sure we have people working to pay pensions for older generations when they retire. We need to make sure that people will continue to have babies. We need sensible regulations that give employers a degree of certainty in the workplace and enable mothers and fathers to discharge their duties as parents while still playing a role in the workplace. Discrimination plays no role in that whatever. It is bad for the economy because of the impact on the labour force and on the confidence of individuals and their ability to carry out their full role in the labour market.

A significant amount of research was carried out by the Equal Opportunities Commission in 2005, and the Department was behind various surveys that dealt with such issues in 2006 and 2008, but with the current information available to us, it is a fair challenge to know the full extent of the problem. Anecdotally, we know that it is a problem. The report from the Working Families helpline outlines cases where there is clearly a problem. What is less certain is the extent of the problem.

Thankfully, the majority of women on maternity leave are not experiencing these problems and having to call the helpline. The challenge is in understanding the scale of the problem when there is a lack of research and evidence. I have listened carefully to what has been said and the points made in discussions in which I have been involved in my role in the past months. There is a gap in information and I am happy to consider how we can go about trying to see whether we can fill that gap, because only with good information can good policy be made. With those reassurances, I hope that the hon. Lady will be happy to withdraw the amendment.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education) 3:30 pm, 23rd April 2013

I am grateful to the Minister for explaining how she will address our concerns through the ongoing consultation and secondary legislation. I was pleased to hear her strong statement that there is no excuse for pregnancy discrimination. Like the good Liberal she is, she echoed the sentiments of John Stuart Mill and argued that we need to use the talents of the entire population, not just half. I wholeheartedly agree with her.

As well as the strong message from the Government, we need real protections in law to make sure that women in this situation know that they have rights and the full force of the law behind them. The Minister was absolutely right to say that we do not know the full extent of the problem. In my experience of people who are discriminated against, harassed, bullied or unfairly treated, it is unusual for them to complain. What worries me about the Working Families report is that we may be seeing only the tip of the iceberg. We see the people who have the confidence, the know-how and the wherewithal to ask for help and to take on the system, but we do not see those in more difficult circumstances and who may be facing worse discrimination. I am grateful to the Minister for taking the information gap seriously and for considering what we might be able to do. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 277, in clause 87, page 65, line 20, leave out ‘75F(3) or (16)’ and insert ‘75F(16)’.

Amendment 278, in clause 87, page 65, line 20, leave out ‘75H(3), (16)’ and insert ‘75H(16)’.—(Jo Swinson.)

Clause 87, as amended, ordered to stand part of the Bill.