Oral evidence: Pregnancy and maternity discrimination, HC 90Tuesday 24 May 2016

Oral evidence, 24 May 2016.

Witness

Nick Boles MP, Minister of State for Skills, Department for Business, Innovation and Skills, gave evidence.

Chair

Minister, you are in front of us again. We feel like you are becoming an old friend of the Committee. Thank you very much for your time. We know how much time it takes to prepare for a session like this and we are very grateful to you for coming in. You will see that we have just had an extremely useful session with the Equality and Human Rights Commission, which you worked with jointly in producing this important report on pregnancy and maternity discrimination. I am sure that you will be as keen as we are to find a solution to the problem that they have uncovered, in the work that they have done. Can I thank you again, on behalf of the Committee, for taking the time to be here? We have a series of questions. Can I apologise immediately for overrunning in our initial session? I am sorry if that has inconvenienced you at all. It was completely down to my inadequate chairpersonship, but it is an important area. I am going to swiftly move on to our areas of questioning. I am sure you will know the sorts of areas we want to cover. Ben is going to start off by getting a feel for your overall response to the plan and the call for action.

Ben Howlett

It is almost a year now since the initial report was published, and obviously the Government’s response to that has only come very recently. What action has there been to date in response to their findings?

Nick Boles

I know that you have been talking at some length with people from the Equality and Human Rights Commission, but we have been working very closely with them through the different recommendations that we have accepted, which is the overwhelming majority of them, and with other organisations that have a role in this, chiefly perhaps ACAS, but also the Health and Safety Executive. Specifically, ACAS and the commission, if I can call it that, have been working on developing an e-learning training package, which is aimed at line managers and staff, so that they better understand the rights and responsibilities of all employees, but particularly women who are pregnant and going on or about to come back from maternity leave. That will be published on the ACAS website later in the summer, which will be a free resource. There are a number of other equality packages that ACAS has and they get quite a lot of coverage; I think it is about 5 million hits a year. We expect this to have a significant reach, though of course I do accept that, in a sense, you have to know that you want to get it right to download one of these things. The culture change is probably a deeper task. That is why we are also working with the commission and others to see what the things are that are actually going to prompt employers to do the right thing. There is the famous concept of “nudge”, and you will be aware of the behavioural insight team. While it is very early days, we are looking at talking to the commission about what the kinds of things are that might prompt more engagement by those employers who perhaps are just ignorant of what a progressive approach to managing these issues is, rather than those who are wilfully trying to ignore them or evade their responsibilities. These are at an early stage but I would not rule out doing some further work, even conceivably with the unit, to try to understand what sorts of sophisticated techniques might prompt more engagement by employers. Finally, in terms of the things that are particularly worth pulling out in terms of action, there is talking to the commission and business groups to see what we could do to identify and share best practice and try to highlight best practice, so looking at different ways and options to showcase those employers who do a good job. What is critical is to showcase not just the employers that are doing a good job but also how they benefit from being the kind of work environment where this approach is taken and how that actually assists them. Entirely unrelatedly and coincidentally, I attended a dinner organised by Facebook yesterday evening, which was talking about women in enterprise and how one can promote more confidence among women to set up their own business. It did just occur to me, as we had this fascinating discussion with a bunch of female entrepreneurs and various others, that the role of organisations like Facebook, similarly on these sorts of issues of getting messages out there to employers but also to employees, might well be more powerful than, for all of their best efforts, whatever ACAS or the commission can do, because ultimately they have an interaction in people’s lives that is deeper and with more people than any government agency.

Ben Howlett

Based on the statistics that have been explained from the EHRC report, three-quarters of pregnant women have ended up facing discrimination at some point. These are startlingly disgusting figures in the 21st century. One of the issues, and the first item on the agenda of the report from the EHRC, was over leadership. You were here a couple of weeks ago talking about the leadership that has been taken in relation to tackling discrimination against Muslims in the workplace. Compare and contrast: there were very startling figures in that area and there are awful levels here, but there does not seem to be that sense of leadership. You have explained a couple of low-hanging-fruit examples, where you are putting in plans of action here, but specifically on leadership, which comes up time and time again—it just came up from the Equality and Human Rights Commission, and I appreciate the fact you have not seen that evidence yet—what specifically are the Government doing in order to deliver proper leadership on tackling this issue?

Nick Boles

We have considered very carefully the research that was commissioned, and that is one of the reasons why it took a bit longer to publish the Government response than we had hoped. We wanted to take that very seriously and to try to be as positive as we could be about the commission’s recommendations, so we certainly take it very seriously. It is important not to necessarily think that appointing somebody new or inventing a new body is the only way that Government can show leadership; I am not saying you were necessarily suggesting that. The Women’s Business Council already exists. Ruby McGregor‑Smith provides fantastic leadership of it and has huge credibility in doing so. She is already undertaking a review, as you will know, for BIS on other issues that are of interest to this Committee on progression of black and minority ethnic people within employment. She has been chairing that council. They have reached an audience of 8 million people through active engagement. They have published over 150 topical case studies. It is working with organisations like that that is best going to provide that leadership rather than necessarily inventing a new body. The commission itself does great work. ACAS frankly does great work. These are all institutions that are well understood by employers. It is about working with them to put greater emphasis on this. I share your view—and I think I said this in the Chamber of the House when this was raised—that it was a truly depressing picture that was painted in terms of the experience of many women at work. There is a huge amount of work to be done but I do not think we necessarily need new institutions or dramatic gestures. We actually need that painstaking, consistent, sustained month-to-month, year-to-year, decade-long change of a culture, because ultimately, in other areas of equalities, we have seen that culture does change and can be changed. The Government do have to lead but it is not usually through flashy announcements; it is through painstaking, steady application.

Ben Howlett

There have been a multitude of reports that have come out of the EHRC, and the Government have ended up providing responses that have been welcomed, in some instances universally by the sector, in some instances by the majority of the sector. You must be aware that the response to this particular Government’s response, and the Equality and Human Rights Commission’s report here, has almost been universally that it is weak, and it is weak in areas in which you would not expect them to be weak as well. You focus your attention on the e-learning software, and the dinner you talked about in relation to Facebook. One of the low-hanging-fruit issues would be about creating a website. It was not, “Absolutely yes, we agree upon this.” It was, “We agree upon this in principle but do not fully embrace it.” The response has been almost universally that it is weak. Are there areas where, listening to the response from the sector, you are now thinking, “Right, okay, we are going to go back and revise this. We are going to think about changing it?”

Nick Boles

Sorry, I just do not accept that. First, the response was not weak. Secondly, I do not accept that it has been universally reviewed as weak. Thirdly, I do not think that there is a “sector” or agree with the old idea that there is somehow a sector, and that a sector opinion is what determines whether a Government is dealing with something. Fourthly, it is a literally absurd idea that the answer to every problem is to have a new website, which then by definition has a URL that nobody knows, and you then have to market that new website, rather than dealing with ACAS, which everybody already knows. It is an institution with a huge history. It has an enormous depth of material. You want to point people to the resources in places they already go. This is why I mention Facebook, because people already go on Facebook. They already go to ACAS. They already go to the commission’s website because these are bodies that have built an expertise and a depth of credibility. They become destinations both for employers and for people who are facing problems at work. I just warn against those who suggest that somehow a new website is the answer to all problems. It is a slightly glib suggestion. Glibness is not what Government should be in the business of.

Ben Howlett

No, I am personally not suggesting a new website. However, I can categorically tell you that there has been almost nobody that has given evidence thus far to say, “Oh, yes, I would approach ACAS in the first instance.” Is ACAS working with Facebook, for example?

Nick Boles

I do not know, and I am happy to ask. I only had dinner with Facebook last night, so I am very happy to find out. What I can tell you is that ACAS is dealing, through its new conciliation procedure, with the great majority of all of the cases of maternity‑related discrimination that are actually reported by working people, so of course they have greater expertise than almost any other institution on this. It is through them that we will make change, not through responding to whatever the latest lobby group has decided is the idea of the moment for their latest press release.

Ben Howlett

Just to be fair, this is not just one lobby group. This is pretty much everyone that has come before us thus far. It is not just a small segment. This is not one person that has come in from a charity that has a vested interest in this particular issue. This is everyone. That should ring alarm bells, in my mind.

Nick Boles

I am sorry; I disagree.

Chair

Minister, we have heard a lot of evidence to say that improving the amount of information that women get around their pregnancy is critical, and probably the fact that they do not receive enough information is one of the root causes of the problem. Indeed, you agreed to work in partnership with the EHRC to identify the most cost-effective and appropriate ways of getting that information to new mums. We are a year on from having the research findings come out. We have all agreed they are “depressing”, I think you said. If you are a pregnant woman it is more than that. It is probably quite debilitating as well. Where is your plan detailing what you are going to be doing and when you are going to be doing it?

Nick Boles

You are right of course that the initial results of the research were published a year ago, but it has been a bit more recently that we have been working through all of these details.

Chair

Where is the sense of urgency?

Nick Boles

I am sorry, Madam Chairman. This is now the fourth time I have appeared for you on four different issues, and I find a similar tone in all of your inquiries, which is somehow this suggestion that you can achieve deep culture change through urgent action plans and new websites and big announcements. I am afraid I fundamentally disagree. The way we do it is to work through the institutions that already exist to represent employees and working people who have been discriminated against. They do a fantastic job. We work within the information that they provide. We create these tools for employers; one of the few positive points of the research that came out was that most employers were aware that they needed to be careful not to be discriminating and that there were certain obligations that they owed to women with maternity. We need to be working with employers. That is why we develop a toolkit for the employers who want it. However, as I admitted, there are going to be some employers who do not know to ask. The question is how we get them to ask, and that is why we are working with the EHRC to consider the more sophisticated techniques of nudging action. I just do not accept that what we need is an action plan and a website and a new announcement. What we need is painstaking work. Like most of Government, it takes a long time. It builds up, like layers of lacquer, month after month after month after month. In five years’ time hopefully we will look back and say, “Okay, we are making real progress here.” It is not going to be done through some short-term action plan that then gets put in the bottom drawer. It is going to be done through changing lots of little details. There is detail, which you may be coming on to, on the Health and Safety Executive’s assessment—detail on the guidance—so we need to fix that. There is going to be detail on these e-learning packages that are on the commission website, so we are going to look at that. We are going to look at this question of insurance for smaller employers. We will look at that. It is that kind of detailed work, which does not happen over four months, that will actually create change, rather than any of the slightly more dramatic moves that others may be suggesting.

Chair

You, like us, feel that 75% of women suffering discrimination or negative outcomes when they are pregnant is “depressing”, to use your word. Our job is to make sure that you are doing enough to change that. It is difficult to do that when we have not got a plan, we have not got a timetable, and we have not got a set of responsibilities. I am sorry you feel that we are pressing you for that sort of detail, and nobody is suggesting it is a rush job, but we do need to see the plan to know whether or not, as a scrutiny function, you are actually doing your job.

Nick Boles

I am sorry; we do not intend to publish an implementation plan. We have very clear recommendations. We have been very clear about our response to those recommendations. We have accepted the overwhelming majority of them. We are now working with the commission, with ACAS, with the Health and Safety Executive, and will continue to work with business groups. As we come up with new ways of implementing those recommendations, we will be very happy to come back and discuss with you the progress we are making. I do not believe that we need to publish an action plan to actually follow up. Rather than publishing a plan, I would rather just get on with the work, with the commission, and with all of these other bodies.

Chair

To give us an idea or a slight indication as to when it might be appropriate to ask you to come back to talk about it, when do you think your actions are going to make any difference to the 75% of women who suffer this sort of detriment?

Nick Boles

You will be aware, Madam Chairman, that the last time that a major research project was done, admittedly on very different methodology, was 2005. I am not going to suggest to you that the next time the Committee should return to this is in 10 years’ time, which would be what has been the previous record on this issue. However, I do think it will be some time before we are able to point to evidence of change in people’s experience. I hope it will not be very long before we can point to things that we have done that should contribute to the change in that experience. We are not proposing to have some continuous research project that is tracking people over a number of years, because that would be a tremendously expensive exercise, and actually I do not think really worth it, given that we all know that this is unacceptable and needs to change. Let us just get on and do it, and do the things that we think we can do to try to assist that change. I would be happy to come back in a year’s time, if I am still in post, or my successor, and tell you where we have got to with implementing these recommendations.

Chair

The EHRC, in our previous session, said, “The Government need to show leadership, they need to step up, they need to show visible leadership and they need to show commitment.” That sounds like you may not both be on the same page.

Nick Boles

I do not disagree at all with that call. It is about the way in which we do that. What does showing leadership mean if not sitting down, going through the recommendations they have come up with, and working out, “What does that actually mean? What are you actually going to put? On which channel are you going to communicate what, to whom and what are you going to ask them to do differently than they are currently doing?” That is in fact what action in Government means. I do not know what leadership means if it is not just getting on with the job. I would also point out that the Secretary of State was very keen to be delivering this evidence to the Committee and was very keen to come, because it is something that he takes very seriously and thinks is a really important issue. Unfortunately, I know that the dates that he could do were not going to work for the Committee. He is very clear that this is a priority for us. That does not mean that we need to have some thing to unveil to show that we are acting and taking these recommendations very seriously.

Chair

Though it might help indicate some leadership, perhaps, others might think?

Nick Boles

I would rather deliver than just indicate, personally.

Jo Churchill

I am moving on to health and safety. You will know what I think on this, Minister, but on the Government’s response to the research on health and safety, do you think that stronger laws or enforcement are necessary?

Nick Boles

No, I do not believe that there are stronger laws needed. The Health and Safety Executive has acknowledged that some of the guidance could be improved, and that is something that we will be following up with them, and making sure happens. I do not know whether that is leadership, but that is material action that will make a difference, and we will be following that up. I think that it is already clear that all of the requirements are there in law. We do not need more laws; we need to have better follow-up and better implementation of those laws.

Jo Churchill

Might part of that follow-up approach be that you may well call on the Health and Safety Executive to look at doing specific risk assessments on pregnant women, rather than using the generic one, particularly in light of the fact that 38% of all employees did not actually carry out any form of risk assessment once they knew the employee was pregnant?

Nick Boles

I just want to be a little bit careful about the precise terminology on this. It would be a retrograde step to introduce a specific separate risk assessment, because that would then somehow imply, even if we did not say so, “Unless the specific risk assessment applies to you, the general risk assessment should not include looking at the situation of pregnant women,” and it is really important that the general risk assessment should include that wherever it is going to be relevant—and frankly in most modern workplaces it is quite likely to be relevant, given we have the highest employment rate of women ever in our history. Where you are absolutely right, though, is that there should be specific guidance for different kinds of risk that are either more industry-specific or occupation-specific. I have been given some information about specific hazards of ionising radiation and pregnancy. We need to make sure that the guidance is there, so that if you are doing your general risk assessment and you are aware that you have particular potential risks, that then there is guidance that relates to those particular potential risks. However, the obligation should remain banged up within the general risk assessment.

Jo Churchill

Following that on—that if you like it sits within the duty of care of an employer anyway—is there any Government will to aid the HSE to be more sector‑specific, so that within the risk assessment landscape, you could put on those industries that perhaps use ionising, or where there is a risk from inhalation to the baby, or something like that, “Please be aware that if you become pregnant it is important for both yours and your baby’s wellbeing to let your employer know as soon as possible,” and actually twist the thing on its head, so that there is more information out there before pregnancy occurs? If that was included within all generic information, we possibly would not need this conversation—

Nick Boles

I think that is a sensible suggestion. I know that the Health and Safety Executive is going to be reviewing the guidance that it does issue on new and expectant mothers, and I think that is a good idea: rather than putting it in a place that people will only come to when they know they have already got an expectant mum in their workforce, it is put in a place where if you already employ women you should be aware that this is something that you may need to have different levels of risk management than you would normally have, and you should be made aware of that before you know that somebody is in fact pregnant.

Jo Churchill

Indeed, a proactive approach, rather than a reactive approach, which I would approve of fully.

Nick Boles

I agree with that.

Jo Churchill

Moving on, and you have gone over some of the specific actions that you are talking about—using the e-learning with ACAS and so on—I would be interested to know whether you have got any other specific actions as far as aiding employers’ compliance to health and safety. Who do you think should take the lead on that compliance: the Health and Safety Executive or the commission?

Nick Boles

On anything in relation to risk assessment, obviously it is the Health and Safety Executive. More broadly on the question of discrimination, you can have failures on health and safety management that are not innately discriminatory, but are nevertheless troubling, and we need to root them out as best we can. The Health and Safety Executive should focus on those. Again, I do not want to underplay the role of ACAS. Ultimately, if any employee or somebody not technically classified as an employee—any worker—has an issue with their employer where they feel that they are being in any way discriminated against, bullied, exploited or unfairly treated, then ACAS is the absolutely best first port of call. They will obviously handle, through the conciliation service, a great number of cases. In a sense, even if they do not, they need to be the first place that people go. Obviously the first place they might go is to their trade union, quite rightly. Trade unions have an incredibly important role to play in this. However, in a sense the first official Government place they should go should be ACAS. ACAS is already the expert on all of this. The commission should be advising us, but also Parliament, on what different agencies and Government Departments need to be doing differently or better in order to meet our principles of equality and our ambitions for equality. They are not themselves necessarily going to be delivering many specific things, though they obviously can deliver, as we have discussed before, some guidance for employers, through these online resources. In terms of specific approaches, it is right that the Health and Safety Executive deals with its stuff and ACAS deals with employment problems.

Jo Churchill

Talking about the health and safety approach to specific sectors and occupational groups, there are quite large differentials between different sector‑specific groups and occupational groups. How do you feel this could be addressed? Would some model risk assessments be useful? I love your Facebook idea because it is slightly left-field, it appeals, and it would attract more people. From the evidence we took earlier, actually putting a small credit card in with a pregnancy testing kit may not be the silliest idea to direct people towards an information site, for example. Are there any other ideas that you think could move it forward, because there are differences between SMEs and the larger boys? That is worrying, and targeting the HSE website is another job for a small employer; it is difficult for them to be health and safety experts, employment experts and so on, which all this falls under.

Nick Boles

Those sorts of ideas are very welcome, and in a sense that is what I meant by some of these “nudge” responses that we might look at, in terms of how we communicate proactively with people and with employers, in a way that gets those who would not otherwise necessarily think of looking up what they should be doing to do so. I do not quite know how we would ever get such a thing into a pregnancy-testing kit. Ultimately, private sector companies do not necessarily want to carry Government advertising for free. However, it is that kind of approach. It may be when there are other branches of Government communicating with pregnant women about some aspect of being pregnant that a message can perhaps be added. I do not know enough about it. That is exactly what the commission and we are working on together, going through those possibilities of harnessing other interactions that we are likely to have, either with employers or with pregnant women, to ensure that we are increasing the number of them who know what rights they have, on the one hand, and responsibilities they have as employers, on the other.

Chair

I do not think we could have any disagreement that there is evidence that the law is not being enforced closely enough, and that that is why we have such high levels of perceived and actual discrimination. Are you considering, in your not action plan, strengthening the law, doing things like more protection against redundancy for women on maternity leave? The other key area that has come through in our evidence is extending further rights to agency and temporary workers. Do you think the law is strong enough, or do you think it is about enforcement? If it is about enforcement, how are you going to make it better enforced?

Nick Boles

It is about enforcement and the law is very clear on most, if not all, of these issues. Clearly, though, from this research, it is not being followed by many employers and in many situations. However, I certainly did not see any suggestion that the problem was that the law was not sufficiently tough. It was that there were too few employers either aware of it or following it. It is about enforcement rather than changing the law, and we do need to remember that, as well as wanting to insist on true equalities and insist that discrimination is unacceptable, we also want to be ensuring that we are not adding to the burden of regulation on business. So long as we are satisfied, which I think we are, that the law is sufficient, then I think we are right to focus on enforcement. The difficulty here is that the way this works is that we rely chiefly on individuals who have faced problems to decide to pursue those—ideally to pursue them through a conciliation mechanism, through ACAS, and thereby to both make the individual employer change their behaviour, not just in their case but in all future cases, but also to raise the cost to other employers of not anticipating that this might happen to them too, and informing themselves properly about what the law requires. What we see from the research—I have not got the specific page in front of me—was a very small number of women who felt that they had been at the receiving end of some unacceptable discrimination going to the point of registering a formal complaint about it, whether it was unfair dismissal or whatever else it was. The question, which is where we started, is about how you encourage more women to take that route. We do not want to change the fundamental way the whole systems works, which does not just work in relation to this kind of discrimination but works with regard to all other employment rights. We do not proactively send enforcement teams into companies randomly in the same way, for instance, that we send Ofsted into schools. We do not send enforcement teams into companies to check on their employment practices and haul them over the coals if their employment practices are not proper. Our approach, in order to have a reasonable balance of constraint and freedom, is to say, “There are clear rules. It is your duty to understand them and to abide by them, and if you do not, and somebody complains about it then you will suffer through this process.”

Chair

The fact is that one in 10 women leaves their job as a result of their treatment. At the moment you are right to say that when it comes to tribunal cases, we see an extremely small number of women going to tribunal. Why do you think that is?

Nick Boles

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

Chair

You do not think the tribunal fees have any effect.

Nick Boles

I think the point to remember is the tribunal specifically is not the place you go to first. You go to the conciliation route and then you take it on to a tribunal if that does not work. That is now the process: ACAS will direct you into a conciliation process before you go to tribunal. It is the question of why nobody calls in the first place to lodge a claim, as it were. I suspect that there are a lot of people who are put off by the hassle. Also, by definition these are pregnant women; they have got quite a lot else on their minds and on their plates. I do not know quite what the suggestion would be as to how to persuade more of this number of women who, as you said, the report said had left their jobs as a result, to report.

Chair

What work do you think the Government should do to try to understand that better so that we can get into a better position? If you are saying to the Committee today, which you are very clearly, that you do not really understand why more women are not seeking redress, presumably to resolve the situation you will be trying to find that out?

Nick Boles

Yes, but I do not think we have the capacity or the resources to launch a huge further report. As the Committee knows, when this report was first initiated it took a while to work out how it was going to be resourced, and I am glad we did so. We are not in a position to commission a huge piece of further research. I believe that our main focus should be on trying to actively promote good behaviour by employers, because if we could do that, if we could get more employers to be aware of their duties and responsibilities and of the law, then in a sense we would not need to be encouraging more women to complain when something goes wrong. I do accept that it is a worry that relatively few women in this position seek redress. Whether they feel that they do know but they do not want to, or whether they do not know about what are the avenues open to them, it would be good if more of them were to take up the avenues that are available.

Angela Crawley

I wanted to say first of all that we have heard a great deal of evidence that suggests that tribunal fees are a barrier and that the time limit is an issue for many women. Three months is not enough time for women to take that action. You do seem to have a great deal of faith in ACAS and in the Health and Safety Executive, both to implement the health and safety regulations and to ensure that there is mediation. The fact is that for many of these women that is far too late in the process. I just really wanted to bring you back to the earlier point about early intervention and how you are going to ensure that information is out there, both for employers and employees. You have ruled out the possibility of a centralised website, but ultimately what we keep hearing time and time again is that clear unequivocal guidance available to everyone would help to mediate many of these issues that we are now discussing. Why have you ruled these things out?

Nick Boles

Can I just pick through a few pieces? I will come back to your main question, but you said a few things in advance. It is important to understand, on the time limit for lodging a claim, that the tribunal can waive that time limit and extend it if they believe that it is justifiable in the circumstances to do so. While it is desirable that people should lodge their claim within three months, it is not impossible for the claim to be heard if it comes in later. On the general point that you make about how we are going to change behaviour, it is about communicating in a cleverer way than we have been able to do, and we have had some discussions about that. I do not want to say that I have ruled out altogether a new website. It is just that if I could get a bottle of wine for every time somebody has told me that the solution to all ills is a new website, I would have a very full wine cellar. I do not think we should rush to that. If all of the organisations involved themselves conclude that it is a good idea for all of them for there to be a universal front website that then led people into the different things, they are the experts. I would rather follow their advice. I just do not want to rush to that conclusion that that is somehow the solution to all ills, because I am quite aware, as members of the Committee will be, that Governments litter websites behind them, just because they want to announce a new policy or a new programme. It is about being cleverer about that communication. I am afraid I cannot bring forward any specific details, because, as I say, we are at a reasonably early stage of thinking about these behavioural interventions. The kind of discussion we were having—whether we can do something with organisations like Facebook or whether we can piggyback off other communications that Government are already making with individuals, whether it is employers or employees, to make them more aware of their rights, or, for employers, their responsibilities—is the kind of thing we should be thinking about. As part of that, I would very much want to be exploring with ACAS and others how we can ensure that more women know that the tribunal process and/or the conciliation process is one that is available to them, and that that can produce a satisfactory outcome, as indeed it does with many who do go through it. It is just that the number of those who go through it is smaller than we would like.

Ben Howlett

I probably do owe you a couple of bottles of wine for the amount of times I have ended up suggesting it. I also consider this website issue, by the way. If you condense six websites into one website, you are ultimately tackling the bureaucracy that people have to go through in order to access the information. Sometimes a streamlined website process can be a good thing. I do not know who owes who the bottle of wine on that basis. However, regarding the Government’s response on recommendation 5a, in light of its review the Government announced in June 2015 the start of a post-implementation review of the introduction of fees into employment tribunals. That is obviously underway at the moment, and the grounds on which discrimination is taken into account will actually be reported on; we do not know the timeframe for that, so perhaps you might be able to give us an update in terms of the timeframe. When they are looking at all grounds of discrimination specifically, will this review look at pregnancy and maternity discrimination?

Nick Boles

I am afraid I am not the absolute expert on this, because it is a Ministry of Justice-led review. We are just waiting for the review to complete and are adding input to it. What I do not know is what other things they are doing in the review. I would be very happy to ask a Ministry of Justice Minister to write to the Committee, or I could write having secured that information. I am afraid that I do not know off the top of my head.

Ben Howlett

If you could that would be really useful, particularly with the levels of discrimination being talked about here.

Chair

The final question from this section is around the fact that you have already agreed to review the existing guidance and accessibility of good employment advice services. What plans do you have to improve access to good quality, free legal advice to employees? We find that many of the cases are so different it is very difficult to give stock support. What plans have you got to do that, given the scale of the problem that we have here? Will more funding be available to do this, and, if so, to which organisations?

Nick Boles

I do not know if any of the Committee have ever called the ACAS line, because they now have a responsibility for a lot of the advice on employment rights through that line. It is a remarkably impressive, sophisticated and deep expertise that they are able to offer people. That hotline is obviously available for free to anyone who has an issue.

Chair

Are you saying that ACAS can provide the free legal advice that is necessary?

Nick Boles

Yes, I obviously want to be a little bit careful about when legal advice becomes something that means you have to have a contract and all of that. However, for advice on people’s employment rights and on the abuse of those employments rights, ACAS absolutely runs that service and it does an excellent job. In my view, it has more than adequate funding to do so. We are not planning to invest more in this. Again, it returns to what we are talking about; it is making sure that people are aware that this exists and somehow feel that it is not a very daunting matter to use it, because those who do use it express a great deal of satisfaction with it.

Jo Churchill

Going on to working with employers, as I alluded to with the health and safety, there is a worrying attitude amongst employers. This is particularly to do with the difference between SMEs and larger employers around the lack of awareness. There were some startling figures, such as 70% of small employers felt that women should declare if they were pregnant at the point of being recruited, whereas that was only 37% in some of the large employers. The other one that I found quite startling was 18% of SMEs found additional maternity leave was difficult to manage. Only 3% of larger employers did. That is the 26 weeks at the end. There is probably something quite simple that can be done to aid the small employer in some of these areas. What specific actions are the Government likely to take or thinking of taking to raise awareness amongst firms, particularly small firms, as far as their legal responsibilities go?

Nick Boles

First, to be clear, you are right that their legal responsibilities are clear, and I was also shocked by this suggestion that 70% would like to be able to ask a question that it is illegal to ask and has been illegal for a very long time. I can understand why somebody who employs one person might wish to know. That is different from it being at all reasonable or legal to ask; it is not. We therefore need to do a better job of working with perhaps the Federation of Small Businesses to get this information out there. However, again that is why I keep on coming back to this point about innovative forms of communication. I have a hunch that the people who read the FSB’s guidance on employment practices and discrimination are probably not the people who are going to make the mistakes. It is the people who are not even a member of the FSB or do not read any of its guidance. We need to be clever about it if we can. One of the things is that you cannot overload these things. There is one organisation that we know communicates with every single employer in the country, and that is Her Majesty’s Revenue & Customs. Can we talk to them about maybe putting a message somewhere in one of their communications? The trouble is literally every branch of Government is trying to load, like a Christmas tree, on an HMRC communication. We need to think about that. DVLA does not necessarily communicate with every employer but probably does because most employers will have some kind of vehicle. That is what I would like to focus on more, rather than just saying, “Of course I will talk to the FSB about it.” They have a fantastic person on their board, who was at this dinner last night; she is a young woman who set up her own motorcycle repair business that is now tremendously successful. She is on the FSB board and she is a remarkable woman. If the Committee is ever looking for a witness, I would recommend her. Of course we will talk to them, but it is trying to think inventively about how you communicate to the people who do not read standard Government communications. That is the sort of essay question.

Chair

Do you not make them concerned about the consequences?

Nick Boles

Yes, but how do you get them to be concerned about the consequences if nobody takes them to the tribunal?

Jo Churchill

An additional point that I would put there is about what the cost of that enforcement is to us and the taxpayer if it is not blanket? It is like, if you are not going to get caught not putting a parking ticket on your car because there are no parking enforcement officers, you are going to not put the ticket on. For me, there is a balancing act here. Those were the specific actions and really that is the practical support as well, within it, rolled up into that, is it not? You are looking at that. What happens if awareness-raising, practical support and specific actions are not effective? Will you just give more carrots, or do we need a bit of a stick?

Nick Boles

If I may, I will share with the Committee one of those slightly unsatisfactory but complex conversations that I have had recently. I felt that this might be a classic area with potential for some kind of a naming-and-shaming scheme. We had a naming‑and‑shaming scheme with the minimum wage. It does make a difference when employers are listed for naming and shaming because they have broken the minimum wage legislation. I tell you: they really mind and they fight quite hard not to be named and shamed often, and write letters. I said, “Is this not a perfect place to do naming and shaming?”. As the Chairman suggested, if we raise the cost to people of breaking the law—not just the financial cost but the reputational cost—that might have an effect. Of course, the very good advice comes back that through the tribunal process, if something is resolved at conciliation—and generally speaking we prefer things to be resolved at conciliation because it reduces the costs for everybody—there is no finding of fact. Therefore, even if there is a conciliation process where somebody has complained about discrimination, they have taken it to the first stage of conciliation at ACAS and then they have reached an agreement because ACAS has brokered an agreement through conciliation, as there is no finding of fact you cannot then list those employers. It is relatively few that go on to a tribunal. Would, therefore, we be implying that the problem is less big than it is if we only named and shamed people who had gone to tribunal because it is only in tribunal that there is a finding of fact? I am going to go on looking for methods of raising the pain that is felt by those who continue in these practices, but I wish I could pretend to the Committee that it is as simple as one might like to find a cheap—because we have not got extra budgets—efficient, targeted and effective method for raising the pain to employers of this practice.

Jo Churchill

What you have said about how difficult that is has virtually mirrored the answer that we got from the EHRC in the last evidence session. Looking at the last point, would you provide a financial incentive, because some of the report alluded to us increasing, particularly to SMEs, the amount of statutory maternity pay, for example? If you then connected the additional financial support and incentives to businesses, like statutory maternity pay going from 103% to 115%, for example, but that was then predicated on the amount of women still in employment after a year and if not you clawed back some of that additional money, would that not provide some degree of incentive? Nobody likes losing money.

Nick Boles

It is an interesting and inventive suggestion. I personally just have to do the boring Government Minister thing of saying, “There is no money. We have set budgets and we are not in the business or raising public spending. We are trying to cut it.” My understanding was that small employers do already get reimbursed at a higher rate.

Jo Churchill

They get 103% currently but there were suggestions by a couple of bodies within this report that actually that was one of the mechanisms you could use to provide an uplift to between 105% and 115%. It goes straight to the SME to cut out some of the administrative function of it because again, going back to the body of the report, 28% of small firms said that pregnancy puts an unreasonable cost on them compared to only 9% in larger businesses. Taking that into account, some degree of financial remuneration to encourage them into doing the right thing at all stages with female workers might be a way to look at this.

Nick Boles

I do not want to tell the Committee what the Committee knows all too well. We can only consider things that genuinely have no net cost. If there is a way of constructing such a scheme that net-net-net has no net cost, then I will be very happy to look at it. It also needs to be cheaply enforceable. It is not just the actual cost of passing payments to employers; it is also the administration cost of running the scheme and the no-net-cost rule has to apply to those costs as well as the costs of payments. I am very happy to look at any suggestions that do pass those requirements.

Jo Churchill

Could you not look at perhaps fining large businesses, 89% of whom found it easy to facilitate time off to attend appointments related to pregnancy but 11% did not? I found that quite difficult to take on board with regards to large employees employing over 250 workers: that 11% were still not complying with something as simple as that. Would a fine there not help to incentivise smaller businesses?

Nick Boles

I would be very happy to take a worked-up proposal on that.

Ben Howlett

This ties in quite neatly to what Jo has just been talking about. If you are looking for a no-net-cost solution to this, then we are still awaiting the response back from the gender pay gap report, and obviously the reporting function that has been requested by Government for those businesses above 250 people, although that will not necessarily help with those small businesses. You may not be able to answer this, because it might give something away, but would you be interested in introducing a one year after returning from maternity leave and one year after making a flexible working request reporting function as part of the gender pay gap reports that businesses are going to have to produce anyway?

Nick Boles

I do not want to discourage members of the Committee from coming up with interesting ideas because Government are often not very good at it. I would just caution against the perhaps implied presumption that reporting requirements are not themselves a regulatory cost on business. We would need to evaluate that. I can certainly see the attractions as it were, in terms of the information that would bring forward. We have introduced quite a lot of new, different things in the last year. I know that it is frustrating, in a sense, when one feels that Government should be going further. However, we would probably want to allow those interventions to bed in, see what information we get back and see whether it drives a change in behaviour before we start adding a whole lot more.

Ben Howlett

I know exactly what will end up happening: a lot of people will end up putting up their hands, saying, “More red tape—run away!” In terms of monitoring, very specifically, who is going to be responsible for monitoring pregnancy and maternity discrimination outcomes in the report?

Nick Boles

I am the lead Minister for it in BIS. Obviously the different agencies have their different bits of responsibilities. I am not actually technically an equalities Minister, though you might have thought it after my regular appearances at this Committee. The Equality and Human Rights Commission does not technically report to me but, as the BIS Minister responsible for employment rights, I will be leading on the following through of the recommendations that the Government accept.

Ben Howlett

Have you considered what performance measures you are going to be looking at yet?

Nick Boles

No, I try to keep things simple. What I wanted to see was progress on all of the recommendations that we said that we accept, so that is progress on communicating with employers and progress on the guidance of the Health and Safety Executive—progress on both of those things.

Ben Howlett

I do not want to repeat what was asked earlier on in terms of timeframes. I understand that obviously you have come in front of us on a number of occasions and we do not want to end up asking you to come in every single year, but we have a responsibility to look at the figures that are being expressed to this Committee and thus ask you to come back and report to the Committee in terms of progress on the response. It has only been a couple of months since the Government responded but what sort of timeframe would you be looking for?

Nick Boles

I said earlier that in a year, while I could not promise to have any data about whether this was happening less, because that data is not something that we are currently able to collect, I am very happy to come back and say what we have done and what effect we think what we have done might be having, and what evidence we have for that. You said you did not expect me to come here every year; I would be disappointed if I did not get an invitation at least once a year, just maybe not once a quarter.

Ben Howlett

It depends how many times I can bring up websites and how many bottles of wine you want, but absolutely. In terms of the performance reporting that you will be looking at over the next couple of months, what work will you be doing with the Equality and Human Rights Commission in putting forward a series of different KPIs?

Nick Boles

This is rather straying into the question of an action plan. We can overcomplicate life. We have some quite clear recommendations. We have not accepted all of them. We have accepted almost all of them. They generate work and I am going to get a regular report from the lead officials in this area on how that work is going, not least because I know that probably in about 12 months’ time I will be back in front of you having to tell you and satisfy you that we have done what we said we would do. I do not think it requires KPIs. I just need to see progress.

Ben Howlett

What would you consider good progress to look like?

Nick Boles

We would like to see that all of these different bodies have done what they need to do. I do not want to repeat everything, but we would like to see that the Health and Safety Executive has done what it needs to do with its guidance; that ACAS has done what it needs to do to try to communicate better to more employers, but also to more employees about what avenues of redress are available to them and also what advice is available on their excellent service; that we have worked with the commission on developing some of these more innovative ideas about how to communicate with employers and explored whether any of them are possible. They will not necessarily have actually happened but certainly a decision should have been made about what we can do and what we cannot do across all of the recommendations that they have made and that we have accepted.

Ben Howlett

I appreciate that. In 2020, we could be coming back here and asking the same questions again. We could still be seeing that 70% of women, according to a survey that is yet to be commissioned, are saying that they have also been discriminated against. I hope that is not the case. We all agree that we do not want that to be the case but ultimately we have a responsibility to make sure that we are asking and holding to account the right—

Nick Boles

I entirely agree that that is a very valuable role that the Committee can play, but I do not think that it requires KPIs to update guidance; just get on and update the guidance and tell me when you have done it. That will be true of all of these things: review these different information packages that you are putting together and tell me which ones we are able to do, when, how they will be done, what they will say and who they will go to.

Ben Howlett

My very last question relates to what the Cabinet Office is doing regarding our universal responsibility to hit our sustainable development goals. Obviously maternity discrimination is a part of those, and we are internationally targeted as a part of that, because that has just recently been announced. Will you be working with the Cabinet Office in ensuring that this fits in with the overall goal 5 strategy, which we will have hopefully received a report on by the end of the year?

Nick Boles

I am not sure if I am a great expert on this but I am always happy to work with the Cabinet Office, and if it is an appropriate part of that work then of course I will be happy to take that up with Matthew Hancock.

Chair

Minister, you are responsible for employment rights at a time when we have got record numbers of women in work. That is throwing up new challenges for employers; this is just one of them. I do not think any of us should forget the 700,000 babies born every year in this country, and many of those mums are working and three quarters of those that are working are suffering some sort of discrimination. I hope the progress that we see is that fewer of those suffer discrimination. I hope that is an objective you share and I look forward to your response to our report when we publish it.

Nick Boles

Absolutely, thank you very much. Oral evidence: Pregnancy and maternity discrimination, HC 90 20