Draft Carer's Leave Regulations 2024 Draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 Debate
Full Debate: Read Full DebateJustin Madders
Main Page: Justin Madders (Labour - Ellesmere Port and Bromborough)Department Debates - View all Justin Madders's debates with the Department for Business and Trade
(6 months ago)
General CommitteesIt is a pleasure to see you in the Chair this afternoon, Mr Hollobone. I thank the Minister for his introduction. We will not be opposing the regulations today, although that is not to say that I do not have a few questions and comments—I know the Minister would have been disappointed if I did not have anything to say. Let me start by paying tribute to the hon. Member for North East Fife and my hon. Friend the Member for Barnsley Central (Dan Jarvis) for their work on the private Members’ Bills that led to these regulations.
As the Minister highlighted, the draft carer’s leave regulations will provide employees from day one—we in the Opposition certainly like day-one rights—the right to a maximum of one week’s leave per year to care for a loved one, without any requirement to provide evidence. As we know, the entitlement can be taken in chunks as small as half a day or as one week’s continuous leave, and it cannot be refused by an employer, nor can an employee be detrimentally treated as a result of taking such leave, in common with many other protections in employment law.
Campaigners have pushed for many years for the right to statutory care leave, but until now there has been no such right. We know that there is a whole range of reasons why carers might need to take time out; the regulations will hopefully allow them to provide assistance with a doctor’s appointment or recovery after surgery, for example. The regulations are undoubtedly a step forward, and they should make a difference to those with caring responsibilities who are in paid work.
As we heard, the number of people potentially affected by the regulations is not insignificant. There are millions of people who are both in work and responsible for caring. Carers UK found that before the pandemic almost 5 million people were juggling work and caring, and that increased to 7 million during the pandemic. The Chartered Institute of Personnel and Development estimates that the figure is closer to 3.7 million people, while the impact assessment published alongside the regulations states that the total number of carers—not just those who are in work—stands at 4.2 million. There are, therefore, several different estimates of the number of people who will be impacted by the regulations, and I will return to that briefly later on, but whatever figure we choose, it represents a substantial proportion of the total population, let alone of the number of people actually in work. Given that, at the latest count, there were about 33 million people in work, around 11% to 15% of the overall workforce may benefit from the regulations.
There is a large amount of evidence that good employers already have informal care leave practices in place, but of course many employees do not have that option and, unfortunately, often take caring leave in the form of annual leave or sick leave. That was uncovered during the Government’s 2020 consultation, which found that two thirds of carers had had to use annual leave to provide care for their dependants. In essence, until that point the issue was hidden: carers would use annual leave or find another way, by hook or by crook, to take the time out that they needed. We should make it very clear that annual leave is meant for rest and recuperation, not caring responsibilities.
A 2018 report by the Work and Pensions Committee summed up that unfortunate practice as “detrimental” to carers’
“own physical and mental well-being,”
and said that, in the long run, it would increase
“the risk of sickness, exhaustion and ‘burnout’.”
Those warnings appear to be accepted in the summary of the “do nothing” approach in the impact assessment published alongside the regulations, although I cannot help but point out to the Minister the irony of the Government’s being alive to the importance of a worker having the option and the ability to take annual leave in the context of caring, just a couple of months since the introduction of reforms to rolled-up holiday pay, which will have the opposite effect.
All hon. Members here will appreciate how taxing such caring efforts will be for workers, and many will, of course, have personal experience of such difficulties. Research published by the CIPD in 2021 found that almost one third of working carers provide at least 30 hours of caring per week, meaning that they are effectively undertaking another full-time job on top of their full-time caring responsibilities. Of those working full time, 28% provided at least 30 hours of care. Understandably, for many that can take a huge physical as well as psychological toll, not to mention the need to balance such personal challenges with the development of a career.
For many the situation can seem insurmountable, and people often reduce their working hours or give up work entirely. I hope the regulations stop that happening as much as it has been to date, but according to research 9% of the population have had to do that: the impact assessment notes that 5% have left the workplace altogether and a further 4% have had to cut their hours. Carers UK claims that this translates to 600 workers leaving the workplace per day. If that is correct, it is a staggering figure and clearly something that we should all want to do something about. It is clear that informal care needs can impact on one’s career, leaving many working people in a state of economic inactivity in order to provide care. When so much potential and experience is lost to the labour market, we need to address that; I hope the regulations will help in that respect.
It is important to note that the burdens do not fall on all sections of society equally. The impact assessment notes that the impact of caring while in work hits those aged 45 to 54 hardest—I declare an interest at this point as I am in that age group; I know it is hard to believe, but I am under 54—with more than a quarter of people reporting that it had taken a toll on their work. There is also a gender aspect to this, with women more likely than men to be responsible for caring. The family resources survey found that 9% of women, as opposed to 6% of men, are in this position. If we put the facts together, it is no surprise that women aged between 45 and 64 years old are most likely to be carers. As we know, with such added responsibilities they are more likely to be leaving the workforce, which exacerbates the existing gender pay gap.
All this shows that not only are many making a massive personal sacrifice, but there are societal consequences as well. The inequalities in terms of who is responsible should trouble us all, but there are also profound financial impacts. The impact assessment notes that the potential cost incurred to the Exchequer alone is around £2.9 billion per year. Analysis suggests that better carer’s leave policies could save businesses a cumulative £4.8 billion per year in unplanned absences, and a further £3.4 billion in improved employee retention. Clearly, those figures may need to be tested by experience, but it is clear that some businesses have caught on to the benefits of providing carer’s leave and introduced voluntary policies. Sadly, though, that applies only to a small proportion of businesses overall—Carers UK report that it is around 12% of existing employers.
It is an understatement to say that a very strong case for carer’s leave has been made for a number of years, but we do have concerns about some of the aspects of the regulations. Most significantly, the calls made during the passage of the Carer’s Leave Act for the Government to consider making such leave paid have fallen on deaf ears. It was not just the Opposition who called for paid leave; the Government’s own response to the consultation on the matter, which was published in September 2021, stated:
“There were strong calls from charities and individuals for this leave entitlement to be paid.”
Despite those strong calls, the space allocated to considering them in the consultation extended to just 162 words, in which the Government said they were “sympathetic” to the calls but judged that the impact on businesses would not be “proportionate”. There is no analysis to support that position, and no further evidence. I know that finances are tight, but we already know about the potential positive financial impact, so I would have expected some form of analysis in the impact assessment—which took a year to come out—of the costs and benefits of making the entitlement paid. The Government should at least have considered that as an option.
Why have the Government decided that it would be disproportionate to make the entitlement paid without offering any supporting evidence? Has the Minister looked at costings at any point? Indeed, has there been any consideration of that point at all? Given the evidence that there is an economic benefit, it is important that there is an explicit acknowledgment in the impact assessment that keeping the leave entitlement as unpaid will discourage some carers from taking up leave. The impact assessment says that
“as this is an unpaid leave entitlement some carers will be disincentivised to take the full entitlement of leave, as they do not want to lose more of their income. Existing survey evidence shows that one of the key reasons for not taking leave is because of affordability.”
Will the Minister explain why the Government have chosen a policy which, according to their own analysis, appears to limit the take-up?
The hon. Gentleman is implying that we should make the entitlement paid, which is a perfectly reasonable position. As he makes that assertion and that policy decision that the Labour party will presumably adopt, does he understand how much that decision will cost and where the money will come from?
As the Minister knows, we will publish our proposals with costings when we get to the general election. However, as the Government have been considering the regulations, I want to know whether they have undertaken such an exercise. It appears they have not, and I think, given that there is apparently some financial benefit, that it is perfectly reasonable to ask why that question has not been addressed at all. I further point out that the impact assessment states that
“some employees may prefer to use their annual leave for caring responsibilities, as this is an unpaid entitlement and annual leave is paid at full-pay.”
That undermines the purpose that the regulations are trying to achieve, so I hope the Minister can address that in a little more detail when he responds.
As I mentioned earlier, there is a question about how many people will actually benefit. I quoted figures from Carers UK and the CIPD, which place the number of people in work who are carers at more than 5 million or at 3.7 million, respectively. The Government’s estimate of those who will benefit is substantially lower, at 1.9 million, according to page 13 of the impact assessment. That number is also alluded to in the explanatory memorandum, which states that the number of in-work carers is roughly half the total number of informal carers, which is 4.2 million. It would be useful to hear from the Minister why we have such discrepancies on the figures; after all, there are several million people between the Government’s and the CIPD’s estimates. One possibility is that many carers do not qualify for the assessment because they are not employees. I do not know whether that has been part of the issue.
I have some concerns about the mechanics of the entitlement and will ask the Minister to address those when he responds. The particular issue is the ability of an employer to postpone the leave for a period of up to one month. The regulations state that an employer is entitled to delay the take-up of leave if
“their business will be unduly disrupted if the employee took carer’s leave during the period identified in the notice”.
That appears rather open-ended. What constitutes a business being unduly disrupted? Will the Minister help us with that? Will there be guidance issued on that point, alongside the regulations, to clarify the circumstances in which it can be invoked?
It is also worth noting that if an employee provides less than one week’s notice, the leave could be postponed before the earliest day or part day requested in the employee’s notice. That means that there are asymmetrical notice requirements. Where an employee must provide adequate notice to proceed with their entitlement, the employer can seemingly postpone at a moment’s notice. We can all see why that that might not necessarily align with people’s caring responsibilities. Most of the time, the leave will be dependent on the care needs of the recipient, and it might not be possible to rearrange cover in such a fashion, so will the Minister accept that a balance must be struck between the needs of the carer and of the employer?
I suggest that the way the draft regulations are framed means that the employer could, if so minded, refuse a request for whatever reason they chose, as long as they use the wording of regulation 8(b). On the face of it, under the draft regulations, there is no mechanism to challenge an employer’s decision. On reasons to postpone carer’s leave rather than refuse it—it is supposed to be operational in a month—what explanations does the Minister expect a business to produce? What measures can the Government take to ensure that consent is not withheld unreasonably?
Before I move on to the second set of regulations, I will say that it is a little disappointing that we have had to wait such a long time for regulation. It is now not far off seven years since the Government promised to
“give workers a new statutory entitlement to carer’s leave, as enjoyed in other countries”,
in the 2017 Conservative general election manifesto. That was repeated in the 2019 manifesto, which stated that they would introduce the
“entitlement to leave for unpaid carers, the majority of whom are women, to one week.”
A promise to introduce the provisions as part of the now mythical employment Bill was made in the 2019 Queen’s Speech. A consultation was launched in March 2020, followed by a Government response a year later, but then we heard nothing more.
As we know, throughout the passage of the Carer’s Leave Bill there was no opposition to its principles and no amendments were made. I think it was universally accepted that it was a positive step forward, which poses the question of why we have had to wait seven years for this to be delivered. Why did we have to rely on a private Member’s Bill for it to come into law? Hundreds of thousands of workers could have benefited from the protections in the legislation had it been issued earlier. It is positive that we have finally got there, but it is reasonable to ask the Minister why it has taken us so long.
I now turn to the second set of regulations, the draft Maternity Leave, Adoption Leave, and Shared Parental Leave (Amendment) Regulations. As the Minister stated, they are about the protections against being made redundant that are afforded to workers who take maternity, adoption or shared parental leave. The rights stem from the MAPL regulations of 1999 and similar provisions in the Paternity and Adoption Leave Regulations 2002 and the Shared Parental Leave Regulations 2014.
All the existing regulations state that if a worker’s job is being made redundant during their maternity, adoption or shared parental leave period, they are entitled to be offered alternative employment that is not substantially worse than their previous job. As the Minister said, the new regulations will expand the time during which those protections apply up to 18 months after the birth of the child. That will mean that a mother taking the full 12-month entitlement to maternity leave or a parent taking the full 12-month adoption leave will be protected for at least six months after their return to the workplace. For a parent taking shared parental leave, protections apply only if they take off at least six consecutive weeks of parental leave.
We absolutely support the Government on increasing protections and, as the Minister said, a range of evidence that has been available for a long time indicates that new mothers have been pushed out of jobs and discriminated against. The Minister referred to the Equality and Human Rights Commission’s 2015 estimate of about 54,000 new mothers being forced out of their jobs, equating to about 11% of the women responding, who had
“been dismissed, made compulsorily redundant where others in their workplace were not, or treated so poorly they felt they had to leave their jobs”.
In 2020, a Pregnant Then Screwed a survey of almost 20,00 women also found a figure of about 11% of women on maternity leave who had been made redundant or expected to be made redundant. The Government recognised that position and made positive noises following a 2017 Women and Equalities Committee report, but did not launch a consultation on the issue until 2019. Again, a commitment to act was made in the 2019 Queen’s Speech, but here we are in 2024 before we finally have some regulations.
It must be stated that the second set of regulations will address only one element of the challenges that women and other parents face: that of being made redundant while pregnant. On page 7 of the impact assessment, it is estimated that the measure will likely cover about 7,500 people. Clearly, that is a not insignificant number of workers, and it is a welcome step that additional parents will have the protections, but that is only a small proportion of those who start a family each year, and it is certainly a drop in the ocean compared with the 11% figure in the surveys to which I have referred.
There is concern, then, that the regulations will not take us all the way to where we want to be in protecting women and new parents from discrimination during and after pregnancy. I think we can all agree that the surveys and the evidence show us that there is currently an unacceptable level of discrimination, but it is important to remember that that has all been happening under the current rules on maternity, adoptive and shared parental leave, so it is reasonable to ask this question. What do the Government think will happen, when the extension of the period comes into force, to actually ensure that all discrimination in the workplace is eliminated? We know that tens of thousands of women are already being forced out of their jobs, through reasons not associated with redundancy, during pregnancy or within six months of their return to work. I fear that the measure will not go far enough, so does the Minister have any thoughts or suggestions about what else could be done to reduce the very high numbers?
The regulations on which the statutory instrument builds are reliant on awareness by the employer of the rules and on the ability of the worker to enforce their rights. The impact assessment noted that 70% of employers reported a high level of awareness of female employees’ rights, but it also noted that deeply concerning biases were held by an unacceptably large proportion of employers. Reportedly, 70% of employers held the belief that women should declare a pregnancy during the recruitment stage, and 25% thought it was acceptable to ask a woman about their plans to have children when hiring. Those statistics are concerning and should be setting off alarm bells about the latent discrimination that still exists. I started work nearly 30 years ago and even then those sorts of questions were simply unacceptable, so the fact that the impact assessment reveals that that kind of prejudice is still alive is worrying to say the least.
The concern is reflected in the part of the impact assessment that raises concerns that the effectiveness of the regulations could be blunted through an employer’s adherence to them. I will draw to the Committee’s attention two passages in the impact assessment. The first is the comment on the wider landscape, where it says:
“The legislation in this area is complex and thus businesses may struggle to understand their obligations. As a result, employees may find it difficult to exercise their rights.”
The other, which is a surprisingly candid comment about how the current system is not robust enough to adequately protect workers, says:
“Employers are currently not incentivised to provide sufficient employment protection for pregnant and new parents, and are likely to prioritise their costs and bottom line.”
It would be useful to hear the Minister’s reflections on those comments, because they allude to a wider problem. Will he reassure us that there will be adequate support for businesses to understand the new protections and that they will be accompanied by a robust enforcement mechanism to ensure that the protections actually benefit the people they are intended to benefit?
In closing, I remind Members again that the Select Committee report with actions in relation to where we are with the regulations today was published in 2016. We know that a week is a long time in politics, so eight years must seem like an eternity, particularly to those 54,000 women who we can estimate have been forced out of work each year during that period. The total is more than 400,000 women during that time. As I said, I will conclude on those points. We support the regulations, but there are some questions that I hope the Minister will address when he closes the debate.