Crisis, what crisis? Maternity Acon’s review of the Government’s response to the Peons Commiee’s July 2020 report on the impact of COVID19 on maternity & parental leave

Summary

This document sets out Maternity Acon’s comments on the Government’s response, published on 9 September, to the Peons Commiee’s report on the impact of COVID19 on maternity and parental leave, published on 6 July.

Part 1 addresses the Government’s response to what we regard as the Commiee’s 15 most pressing recommendaons, on which new and substanve ministerial acon is sll urgently needed. These cover:

• Universal Credit and Maternity Allowance • Guidance to employers • Statutory Sick Pay and entlement to Statutory Maternity Pay • Self-Employment Income Support Scheme • Extending maternity and other parental leave • Childcare • Redundancy protecon • Extending Employment Tribunal me limits

Part 2 addresses the Government’s response to the remaining seven recommendaons.

Crisis, what crisis? September 2020 Introducon

On 7 September, the Government submied to the House of Commons Peons Commiee its formal response to the Commiee’s report, published on 6 July, on the impact of COVID19 on maternity and parental leave.

The Government’s response was published by the Commiee on 9 September. This document sets out Maternity Acon’s comments on that response.

Despite acknowledging (in its second sentence) that “we are living in unprecedented mes” and nong that the Government has responded to COVID19 with measures “unprecedented in peace me”, the Government’s response does lile more than summarise and express (unjusfied) sasfacon with the maternity and parental entlements that existed prior to the onset of the pandemic. It therefore fails to address the specific challenges faced by pregnant women and new parents since the onset of the pandemic and the economic lockdown in March – as evidenced in submissions to the Peons Commiee by thousands of the 235,000 peoners, and by organisaons such as Maternity Acon.

As a result, the one and only new ministerial acon promised in the Government’s response is to “host a meeng with groups in the [baby group] sector to beer understand how they can be supported to help parents return to work”.

In a strongly-worded statement on the Government’s response, the Chair of the Peons Commiee, Catherine McKinnell MP, said:

“The noon that current Government support to new parents during the pandemic is sufficient, when a quarter of a million people affected have signed this parliamentary peon, ignores the distressing reality expressed by many. This response [by Government] simply fails to follow the science, and will come as a hammer blow to new parents across the country who need real targeted support now.”

Similarly, Maternity Acon’s Director, Ros Bragg, said in a statement:

“It is bierly disappoinng that the Government has dismissed not only the Peons Commiee’s sensible and evidence-based recommendaons, but the lived experience of the 235,000 peoners. Over the past six months ministers have consistently overlooked the specific needs and circumstances of pregnant women and new parents in their response to COVID19. Government acon is overdue.

We are parcularly surprised to see Ministers suggest that women who have lost wages and entlement to Statutory Maternity Pay as a result of the Government’s failure to issue effecve guidance [to

Crisis, what crisis? September 2020 employers] should bring an employment tribunal claim against their employer. A more business-friendly response would be for Ministers to take the simple, low-cost steps of issuing proper guidance, and making minor amendments to the relevant Regulaons.

The Government’s response is simply not good enough. The risk of further regional lockdowns is growing by the day and a second naonal lockdown is a real possibility. Pregnant women and new parents need ministerial acon, not warm words, and they need it now.”

This document sets out Maternity Acon’s comments on the Government’s response to each of the Commiee’s 22 substanve policy recommendaons (a 23rd recommendaon related to the ming of the Government’s response).

Of course, due to the Government’s dilatory and unconcerned approach to protecng pregnant women and new parents from the impact of COVID19, it is now more than two months since the Commiee formulated its recommendaons, and six months since ministers should have acted on many of the issues covered by those recommendaons. So, with the Government seemingly commied to ending the COVID19 support schemes at the end of the October, some of the Commiee’s recommendaons are now less apposite than they were.

Accordingly, in Part 1 of this document, we address the Government’s response to what we regard as the Commiee’s 15 most pressing recommendaons, on which new and substanve ministerial acon is sll urgently needed. These 15 recommendaons cover:

Universal Credit and Maternity Allowance (Recommendaon 2);

Guidance to employers (Recommendaons 3, 4 and 5);

SSP and entlement to SMP (Recommendaon 6): the Self-Employment Income Support Scheme (Recommendaon 7);

Extending maternity and other parental leave (Recommendaons 8, 12 and 14, as well as Recommendaons 9, 11 and 13);

Childcare (Recommendaon 19);

Redundancy protecon (Recommendaon 21); and

Extending Employment Tribunal me limits (Recommendaon 22).

And, in Part 2, we address the Government’s response to the remaining seven recommendaons (1, 10, 15, 16, 17, 18 and 20).

Crisis, what crisis? September 2020 Part 1: Recommendaons on which new and substanve ministerial acon is sll urgently needed

Universal Credit and Maternity Allowance Recommendaon 2: As a maer of urgency the Government should consider whether Maternity Allowance should be considered as earnings in the same way as Statutory Maternity Pay and should not lead to deducons from Universal Credit.

In its response to the Peons Commiee report, the Government simply reiterates its long-standing ‘explanaon’ for the inequitable treatment of Maternity Allowance in the calculaon of Universal Credit awards: that “Maternity Allowance is a benefit paid by the State which is unearned income”, and “Statutory Maternity Pay (SMP) is more akin to earnings and is treated as a form of earnings”.

However, this is less a jusficaon than a mere descripon of the anomaly, which – as documented by Maternity Acon – results in some low-income women on Maternity Allowance losing out on Universal Credit altogether, leaving them up to £5,000 worse off over 39 weeks of maternity leave, compared to women in the very same circumstances who qualify for SMP and claim Universal Credit. For, as the Government itself acknowledges in a later secon of its response to the Peons Commiee report, both Maternity Allowance and SMP are “provided to enable women to take me off work to prepare for and recover from birth, and [to] bond with their child.”

The Government’s response to the Peons Commiee makes no aempt to explain or jusfy why two schemes with the very same purpose should be treated so differently in the calculaon of Universal Credit awards, to the significant financial detriment of tens of thousands of low-income working women and their families. And it overlooks the fact that, under the previous tax credit regime that Universal Credit replaces, Maternity Allowance was disregarded in full in the calculaon of awards, much as SMP is now.

According to the House of Commons Library, ending this inequitable treatment of Maternity Allowance in the calculaon of Universal Credit awards would cost just £35 million in 2020/21, and only £45 million per year once Universal Credit has been fully rolled out. And the Peons Commiee report notes that this “represents less than 0.07% of the £65.5 billion that the DWP are forecast to spend on Universal Credit and legacy equivalents in 2020/21.”

We connue to see no good reason why DWP ministers cannot act on and implement this recommendaon immediately, as it would require only minor amendments to the Universal Credit Regulaons 2013.

Crisis, what crisis? September 2020 Guidance to employers

Recommendaon 3: The Government should publish clear new guidance for employees and employers, including dedicated pages on GOV.UK, on supporng employees returning from parental leave that explains clearly their opons and responsibilies.

Recommendaon 4: We recommend that the Government publish clear guidance for employers on their obligaons in respect of pregnant women who cannot safely socially distance at work, including making clear that pregnant women have a right to be suspended on full pay if they cannot work safely.

Recommendaon 5: We also recommend that the Government extend the furlough scheme to include all pregnant women, so that an addional safety net is available to both pregnant women and their employers.

Wilfully or otherwise, the Government appears to have misunderstood the point of these three recommendaons. For no one has suggested that the Government should have simply replicated or reproduced in its enrety the exisng “wealth of informaon for prospecve and new parents and their employers”. What has been lacking since mid-March is a high-profile ministerial reminder to employers of their legal obligaons, set in the unprecedented context of the pandemic.

On 16 March, with the UK economy on the verge of lockdown, the Prime Minister and Chief Medical Officer used a televised press conference to announce that pregnant women were especially vulnerable to COVID19, and should self-isolate. Clearly, this was an unprecedented development for the some 500,000 pregnant women in the naonal workforce, and for their employers.

It is therefore surprising, and deeply regreable, that the Prime Minister’s very public advice was not followed up with any similarly high-profile ministerial reminder to employers about their legal obligaons under exisng (but poorly understood) health & safety law, and in parcular how to treat pregnant workers and the hundreds of thousands of new parents approaching the end of maternity or other parental leave and due to return to work.

As a direct result, from 17 March onwards, with employers struggling to deal with the unprecedented circumstances of a pandemic and imminent naonal lockdown, an unknown but clearly substanal number of pregnant women understandably wishing to comply with the Prime Minister’s advice were wrongly sent home on sick pay or unpaid leave, or pressured by their employer to use paid holiday or start their maternity leave early, in breach of exisng health & safety law. This provides that, if a pregnant employee cannot be provided with alternave safe work or work from home, she should be suspended on full pay. However, this is a poorly understood and largely unenforced area of employment law.

Crisis, what crisis? September 2020 Such deliberate and inadvertent non-compliance with health and safety law led to as many as several thousand pregnant women suffering a triple whammy of a substanally reduced income for the remaining weeks or months of their pregnancy, a resultant loss of entlement to Statutory Maternity Pay during their maternity leave, and – if they then needed to claim Universal Credit – a further loss of up to £5,000 over nine months of maternity leave, relave to women in the same circumstances who qualify for SMP and claim Universal Credit.

The point made by the Peons Commiee in its report – and previously by Maternity Acon and others – is that much of this hardship could have been avoided by means of a prompt and straighorward but high profile reminder to employers of their legal obligaons to pregnant women, and a clear statement that the furlough scheme could be used to reclaim 80% of the cost of full maternity suspension under health and safety law. It would have been a simple maer for a minister to issue such a reminder to employers at one of the then daily, televised press conferences.

Instead, ministers not only failed to take such acon, but proceeded to send out deeply confusing messages about the possibility of furloughing pregnant workers under the Coronavirus Job Retenon Scheme (CJRS). Throughout April and May, Business Secretary Alok Sharma and other BEIS ministers repeatedly told MPs that "Government guidance on the CJRS makes it clear that pregnant women can be furloughed if they and their employer agree, and provided they meet the normal eligibility requirements."

In fact, there was not and has never been any menon of pregnant women in the CJRS guidance and, aer their statements were challenged in wrien Parliamentary Quesons in both the Commons and the Lords, in late May BEIS ministers resorted to stang only that the CJRS guidance does not say that pregnant employees cannot be furloughed. Which, of course, did not help pregnant women whose employers were refusing to furlough them.

Clearly, with the furlough scheme (CJRS) closed to new entrants (other than new parents returning to work from maternity or parental leave) since 10 June, and set to close at the end of October, this regreable confusion around the furloughing of pregnant women now maers less than it did. But it is clear from calls to Maternity Acon’s helplines that there is connuing widespread non-compliance by employers with their legal obligaons to pregnant employees under health & safety law.

Accordingly, we connue to see no good reason why ministers cannot act on these Recommendaons, by issuing a straighorward but high-profile reminder to employers that, if aendance at work prevents a pregnant worker from taking the stringent social distancing measures sll recommended by the Prime Minister and Chief Medical Officer, and if she cannot be provided with alternave safe work or work from home, she should be suspended on full pay. And ministers should as a maer of urgency explore how the Government might reimburse part or (preferably) all of the cost of such maternity suspension for as long as the pandemic connues.

Crisis, what crisis? September 2020 Statutory Sick Pay and entlement to Statutory Maternity Pay

Recommendaon 6: The Government was able to amend the Statutory Maternity Pay calculaons to disregard the lower income of periods on furlough. We recommend the Government should also do so for women whose incomes have fallen through no fault of their own because their employers have failed to follow the Government’s guidance on how pregnant women should be treated.

It is deeply disappoinng that the Government’s response to this recommendaon refers dismissively to “anecdotal evidence which suggests that some employers incorrectly asked pregnant women to take sick leave to reduce the risk of them contracng COVID19 in the workplace”.

In the weeks and months following 16 March, more than 400 women contacted Maternity Acon’s helplines about health & safety, loss of maternity pay and whether their employer could force them onto sick leave or unpaid leave, or to take maternity leave early, and we repeatedly raised these issues with ministers in several departments, to no avail. Given that our helplines have been overwhelmed since the onset of the pandemic, and have only been able to answer a fracon of all calls, there is good reason to fear that thousands of women have lost significant sums in lost wages and lost entlement to Statutory Maternity Pay during their maternity leave over the last six months.

Clearly, as the Government states in its response, “women claiming Statutory Sick Pay [SSP] during their earnings assessment period is not new”. However, the scale of women being wrongly put on SSP by employers, as a direct result of the pandemic, is new. Indeed, it is unprecedented, and we believe it merits a beer response from ministers than ‘make a tribunal claim against your employer’. Furthermore, we can see no evidence of the Health & Safety Execuve “taking enforcement acon and [holding] employers to account” in such cases since March.

We suggest that a more responsible and business-friendly response would be for ministers to take the simple, low-cost steps of issuing a high-profile reminder to employers of their legal obligaons under health & safety law, and making further minor amendments to the SMP Regulaons. As the Peons Commiee notes, ministers have already amended the SMP Regulaons once, in respect of furlough pay during the SMP calculaon period, via the amending Regulaons laid on 23 April, which came into force the very next day.

Accordingly, we can see no good reason why the DWP cannot act on and implement this recommendaon immediately. The DWP should prepare and lay further amending Regulaons, covering COVID19-related periods on SSP or unpaid leave during the SMP calculaon period, at the earliest opportunity.

Crisis, what crisis? September 2020 Self-Employment Income Support Scheme

Recommendaon 7: We recommend that the Government amend the terms of the Self-Employment Income Support Scheme to take into account periods of maternity and parental leave, to avoid discriminang against new parents.

While the minor changes that the Government belatedly made to the SEISS scheme in respect of self-employed new parents are welcome, the fact remains that as many as 70,000 self-employed parents – mostly mothers – have lost out as a result of the Government’s refusal to fully discount periods of me out to care for a new child during the three-year SEISS assessment period.

This is an issue that Maternity Acon has repeatedly raised with the Chancellor and other ministers since early April, to no avail, and which is the subject of an applicaon for judicial review brought by Pregnant Then Screwed.

There is a similar issue with the CJRS, affecng employed women with variable hours whose average earnings for furlough pay are being based on their average earnings over 2019/20. As with the SEISS, no disregard is being made for women who took maternity leave during that year, so their furlough pay is reduced if they were on SMP or unpaid leave during that period. Again, we have repeatedly raised this issue with HM Treasury and HMRC officials, to no avail.

With the Government seemingly determined to close the SEISS and CJRS at the end of October, it is perhaps now too late for ministerial acon to make amends to those who have lost out as a result of these oversights in the design of the schemes. However, with the risk of further regional lockdowns growing by the day and a second naonal lockdown a real possibility, it is essenal that ministers address these issues from the outset in the event of any resumpon of the support schemes.

Extending maternity and other parental leave

Recommendaon 8: We support the call of more than 226,000 peoners and urge the Government to reconsider its decision not to extend parental leave and pay for families during the Covid-19 pandemic.

Recommendaon 12: The Government should extend maternity denst provision for new and expectant mothers affected by the pandemic for at least six months, so new mothers have the opportunity to access this important benefit.

Recommendaon 14: The Government should extend adopon leave and pay for adopve parents who have been affected by the pandemic for three months.

Crisis, what crisis? September 2020 It is deeply disappoinng that the Government’s response to these recommendaons focuses – somewhat dismissively – on the impact of COVID19 on “parents’ ability to ‘socialise’ their babies”, rather than on the arguably more crical lost access to health visitors, mental health services, densts and doctors during the months of lockdown that is abundantly evidenced in the Peons Commiee report.

Furthermore, the Government’s false asseron that “our maternity arrangements are already amongst the most generous in the world” – in fact, the UK is ranked only 34th out of 41 OECD countries by UNICEF – is irrelevant in this context. For what maers is not the ‘generosity’ or otherwise of the maternity and parental arrangements and services that existed prior to the onset of the pandemic, but the loss of access to those vital services during the months of lockdown that the Government imposed in response to the pandemic.

And, again, it is deeply disappoinng to see the Government suggest that women who were forced to start their maternity leave early, or were wrongly placed on unpaid leave or sick leave, should simply make an employment tribunal claim against their employer. As the Government is well aware, the employment tribunal system is already under considerable strain, with the backlog of unresolved cases having risen by 24% (from 35,653 in March, to 44,303 in July). And, as the TUC notes, there are reports of some cases being given a tribunal hearing date in 2022. But, more importantly, such a tribunal claim is most unlikely to be an effecve remedy.

However, it is clear that the Government is unwilling to act on Recommendaons 8, 12 and 14.

Nonetheless, with the risk of further regional lockdowns growing and a second naonal lockdown a real possibility, it is essenal that ministers formulate an acon plan to address the potenal impact of renewed loss of access to vital maternity services such as health visitors, mental health services, densts and doctors. And, in this context, we can see no good reason why ministers should not act immediately on Recommendaons 9, 11 and 13 of the Peons Commiee report:

Recommendaon 9: The Government should review the provision of health visitor services in light of Covid-19 and consider funding increased numbers of health visitors and other allied professionals to ensure that vulnerable families are idenfied and given the support they need.

Recommendaon 11: The Government should fund and provide addional catch-up support targeted at this cohort of parents to enable them to access both the professional and more informal support that plays such an important role during the first few months of parenng.

Recommendaon 13: The Government should fund and provide addional professional and mental health support especially targeted at this cohort of

Crisis, what crisis? September 2020 parents, and their children, in addion to its wider plans to significantly expand mental health services provided by the NHS.

Childcare

Recommendaon 19: Conduct an urgent short-term review of funding for the childcare sector to ensure that it survives the current crisis, and if required, provide emergency funding to the childcare sector to ensure that there are sufficient childcare places for parents due to return to work.

The childcare sector was facing severe challenges even before the onset of the pandemic. However, during the lockdown, demand for childcare inevitably slumped, causing a significant drop in income for providers. The Government has rightly covered the cost of state-funded places, and some staff costs through the furlough scheme (CJRS), but a significant gap remains and this threatens the viability of much of the sector: analysis by the Instute for Fiscal Studies esmates that a quarter to a fih of childcare sengs ran a significant deficit during the lockdown.

The inevitable consequences of this are abundantly clear. In July, the Peons Commiee report concluded that:

“The combinaon of the exisng funding problems within the [childcare] sector, and the acute challenges faced by early years sengs due to several months of closure and reopening under reduced capacies, all lead to one likely scenario: a crisis in the availability of childcare places, which will ulmately prevent many parents, in reality mostly mothers, from returning to work.”

Since March, the Government has rightly spent unprecedented sums to support employment. However, if it does not take urgent acon to shore up the childcare sector and enable parents, parcularly mothers, to return to work, much of that investment will be wasted. Since the Peons Commiee report in July, research by the TUC has found that four in ten working mothers with young children cannot get –or are unsure about whether they will get – enough childcare to cover their working hours. And figures released by the Department for Educaon indicate that only 67% of childcare sengs were open, as of 10 September.

On 17 September, in a joint leer to the Chancellor, Rishi Sunak, organisaons including the Brish Chambers of Commerce, the Federaon of Small Businesses, the Naonal Children’s Bureau, the Early Years Alliance, Coram Family & Childcare, the Fawce Society and Maternity Acon noted:

“Childcare is an enabling sector in the economy. Parents simply cannot return to work without it. If the Job Retenon Scheme draws to a close without alternave support, many employers will have to make some employees redundant. Businesses are in the invidious posion of choosing which staff they can rely on as they try to survive. Parents – the majority of whom will be mothers – who do not have reliable

Crisis, what crisis? September 2020 childcare available to them will be extremely vulnerable to losing their jobs. We have already seen mothers taking on the majority of addional care for children caused by school and nursery closures. Maternal employment is likely to be significantly adversely affected by this crisis.”

Accordingly, it is vital that ministers act upon this recommendaon, to ensure that there are sufficient childcare places for parents – in reality mostly mothers – to return to work.

Redundancy protecon

Recommendaon 21: We recommend that the Government should priorise the necessary legislaon to extend redundancy protecon as soon as possible and provide a metable for its introducon and implementaon.

Ministers accepted the case for strengthening the exisng legal protecon against unfair redundancy for new mothers as long ago as January 2017, but have not yet done so. With pregnant women and new mothers facing a new wave of discriminaon and unfair redundancies as the furlough scheme winds down and the economy contracts, acon is needed now if we are not to see a reversal of years of welcome progress on the Gender Pay Gap and other inequalies.

In its response to the Peons Commiee report, the Government simply re- iterates its July 2019 commitment to extend the period covered by the exisng, so-called Regulaon 10 protecon against redundancy. In December, the Government stated it would include the necessary provisions in a wide- ranging Employment Bill included in the Queen’s Speech.

Under Regulaon 10 of the Maternity and Paternity Leave Regulaons 1999, a woman on maternity leave is “entled to be offered” any suitable alternave vacancy, where one is available, as soon as her job is at risk of redundancy.

In theory, this gives women on maternity leave priority over other employees at risk of redundancy. In pracce, however, the protecon it offers is lile more than a mirage, with employers able to ignore or act in deliberate breach of the law, safe in the knowledge that, having just given birth or been away from the workplace for up to a year, a woman is most unlikely to bring an employment tribunal claim – the only means of challenging an unfair redundancy.

Proving such a tribunal claim is notoriously difficult, as of course the failure to comply with Regulaon 10 is rarely if ever made explicit, and the legal costs of pursuing such a claim can easily exceed £10,000. For all too many women, and especially those who are low-paid, it is simply not worth the risk to pursue such a costly legal challenge, so they have no opon but to accept an unfair redundancy.

Crisis, what crisis? September 2020 This leaves employers free to ignore or avoid their legal obligaons under Regulaon 10 with near impunity. And simply extending the period covered by Regulaon 10, so as to cover pregnancy and six months aer return to work, as the Government commied itself to doing in July 2019, would not address this fundamental flaw.

Which is why, since June, together with more than 20 other organisaons and trade unions – including Gingerbread, the Fawce Society, Pregnant Then Screwed, the Royal College of Midwives, UNISON, Unite, Usdaw, the Women’s Budget Group and Working Families – Maternity Acon has urged the Government adopt as its own, and speed into law, the Pregnancy & Maternity (Redundancy Protecon) Bill.

This Bill – a Private Members’ Bill (PMB) introduced on 8 July by the former cabinet minister and previous Chair of the Women & Equalies Commiee, Maria Miller MP – would replace the Regulaon 10 protecon for new mothers with a new legal framework, similar to that used in Germany. Under this new framework, it would be unlawful to make a new or expectant mother redundant other than in very limited and specified circumstances, such as the closure of all or part of the business.

Supported by the Equality & Human Rights Commission and a cross-party group of MPs, the Bill completed its First Reading on 8 July, and is now provisionally scheduled to have its Second Reading on 16 October. However, realiscally, the Bill has lile if any chance of proceeding further, unless it is adopted by ministers.

In contrast, the Government’s Employment Bill has yet to see the light of day, and BEIS officials have briefed that the Bill is now most unlikely even to be published before mid-2021. Which implies the complex and wide-ranging Bill has lile chance of compleng its passage through Parliament and being implemented much before 2023.

Official figures released in August show that the UK has already entered the deepest recession since records began, with the economy shrinking by more than any other major country in the three months to 30 June. And the latest set of ONS labour market stascs, published on 15 September, show that, in the three months to July, the number of redundancies of women increased by 79%, while the number of redundancies of men increased by 23%.

So, if the Government intends to strengthen the legal protecon from redundancy for pregnant women and new mothers, the me to do so is now, not in 2023.

We connue to see no good reason why ministers cannot act on and implement this recommendaon immediately, by adopng Maria Miller’s Bill as their own, and then using Government me to expedite the short, simple and widely-supported Bill through Parliament and into law.

Crisis, what crisis? September 2020 Employment tribunal me limits

Recommendaon 22: We recommend that the Government considers extending the period in which pregnant women and new parents may bring claims before the employment tribunal to 6 months from dismissal on a temporary or permanent basis in light of current challenges posed by Covid-19.

It is clear that, at such an unusually challenging me, pregnant women and new parents would benefit from having more me to prepare and submit legal challenges to discriminaon and unfair treatment by their employer through the employment tribunal system.

Accordingly, on 27 April, Maternity Acon was one of more than 20 signatories – including the Law Centres Network, Liberty, and Working Families – of a joint leer to Jusce Secretary Robert Buckland, urging a temporary extension of the employment tribunal me limit, from three months to six months.

Coincidentally, on 29 April, a Law Commission review of how employment tribunals operate, launched in December 2017, concluded and recommended “increasing the me limit for bringing all types of employment tribunal claims to six months”.

Further proposing that employment tribunals should have the power to extend the new six-month me limit in all cases when they consider it “just and equitable” to do so, the Law Commission noted:

“The current three-month me limit is undesirably short. It dates back to the original concepon of tribunals as a speedy and informal forum for resolving employment disputes. However, claims now take longer to be resolved and are oen more complex, with large sums being claimed in some cases. We conclude that a me limit of six months for all employment tribunal claims strikes an appropriate balance between facilitang access to jusce for employees and providing certainty for employers and employees.”

In its response to the Peons Commiee report, the Government does not address this recommendaon by the Law Commission, and refers only to a Government Equalies Office (GEO) consultaon on sexual harassment in the workplace, which includes a secon on extending the employment tribunal me limit for discriminaon claims brought under the Equality Act. That GEO consultaon concluded in October 2019, and the outcome is awaited.

However, given the force of the Law Commission’s wider ranging recommendaon, that secon of the GEO consultaon is now somewhat redundant, and we can see no good reason why ministers cannot act on and implement the Law Commission’s recommendaon immediately. While primary legislaon is necessary, this would be short and simple, and could be expedited through Parliament and into law in a maer of weeks.

Crisis, what crisis? September 2020 Part 2: Other recommendaons

Review of parental leave and pay

Recommendaon 1: The Government should capture data on the uptake of parental leave, as well as pay, so that any future review of parental leave arrangements can consider the extent to which parents from all groups are able to use their entlements.

Recommendaon 15: The Government should consider equalising the benefits for self-employed adopve parents to those of other self-employed parents. This could be a pilot scheme for those who became new parents during the pandemic, to inform the Government’s wider review on parental leave.

Recommendaon 16: As part of that review [of parental leave], the Government should consider whether entlements and benefits for parental leave and pay can be extended to special guardians.

The impact of the pandemic and economic lockdown poses a serious challenge to the Government’s stated ambion to “give working parents the choice and flexibility they need to combine work with family life”. For, as the Government has previously noted, such flexibility “not only helps individual parents, it also helps the people that they work for: employers have access to a wider pool of talent and are beer able to culvate and retain that talent”.

Robust data on take-up of Shared Parental Leave and Pay is prey much non- existent, and it is unfortunate that the Government did not take the opportunity to set out whatever informaon it holds on this point in its response to Recommendaon 1 of the Peon Commiee report. It is also disappoinng that the Government did not take the opportunity to confirm when it plans to publish its own evaluaon of Shared Parental Leave, originally due by the end of 2019.

However, even without sight of that evaluaon, there is a growing consensus that Shared Parental Leave is a failed policy in need of major reform. Indeed, Maternity Acon has suggested that Shared Parental Leave should be scrapped and replaced with a new system of maternity and parental leave, based on individual, non-transferable (i.e. ‘use it or lose it’) rights to (beer) paid leave for each parent.

That said, the Government has iniated the process of exploring the opons for reform, including a consultaon launched in July 2019 that concluded in November, the outcome of which is awaited. And, while Maternity Acon is keen to see progress in this area, it is clear that the process of developing and consulng on proposals requires further me. Accordingly, in our view, the Peons Commiee recommendaons on parental leave do not require any urgent acon on the part of ministers at this point in me. However, we hope that the outcome of the November 2019 consultaon, and the Government’s

Crisis, what crisis? September 2020 own evaluaon of Shared Parental Leave, can be published shortly, and certainly before the end of the year.

Baby group sector

Recommendaon 10: The Government should provide an update on its discussions with the baby group sector as part of its response to this report.

As noted in the introducon, this is the only recommendaon to which the Government has responded with a commitment to new ministerial acon, namely to “host a meeng with groups in the [baby group] sector to beer understand how they can be supported to help parents return to work”. This is welcome.

Neonatal care

Recommendaon 17: In advance of the planned delivery of neonatal leave and pay in 2023, the Government should pilot the introducon of these reforms for those affected by the Covid-19 outbreak. If a success, the date of the general introducon of these measures could be brought forward.

Recommendaon 18: The Government should priorise rapid tesng for parents of babies in neonatal care.

To our mind, the Government’s response to these two recommendaons, and in parcular its preference for implemenng the full new entlement to Neonatal Leave and Pay through the promised Employment Bill, is not unreasonable, in the current circumstances. We strongly support the introducon of Neonatal Leave and Pay, and for this and other reasons we hope the Government will introduce the Employment Bill to Parliament at the earliest possible opportunity.

Independent review of childcare

Recommendaon 20: Consider an independent review of childcare provision, including the lessons learned from the Covid-19 pandemic, to ensure that future Government funding is effecve and that the sector is sustainable and works for all in the long term.

While Maternity Acon strongly supports this recommendaon about the long-term future of the childcare sector, in our view the greater priority for ministerial acon is the urgent short-term review of funding for the childcare sector called for in Recommendaon 19 of the Peon Commiee’s report (see Part 1, above). Once that short-term review has been conducted and acted upon, the longer-term independent review called for in Recommendaon 20 should be iniated promptly.

Published September 2020, by Maternity Acon maternityacon.org.uk Contact: richarddunstan@maternityacon.org.uk

Crisis, what crisis? September 2020