Shared Parental Leave: Someday will surely come

A few weeks ago, yet another year came to an end without the Department for Business, Energy & Industrial Strategy (BEIS) having concluded its marathon evaluation of the chronically failing Shared Parental Leave scheme.

Originally due to start in March 2017 and underway by late April 2018, the evaluation report has now been stuck in the bowels of BEIS for 45 months (some 1,350 days), despite the then business minister telling MPs in March 2019 that it would be published ‘later in 2019’, and the current business minister Paul Scully telling MPs in October 2020 that it would be published ‘later in 2020’.

And today, having told MPs in July last year that the evaluation report would be published ‘later in 2021’, Mr Scully revised that ETA to – you guessed it! – ‘later in 2022’.

It is hard for a lowly policy wonk to keep up with such fast-paced events, but – despite the evaluation evidently including “large scale, representative surveys of employers and parents, and a qualitative study of parents who have used the scheme” – the long-awaited evaluation report will most likely tell us little that we don’t already know.

We already know, for example, that those parents who do take Shared Parental Leave tend to regard the experience extremely positively, even if they gripe about the administrative complexity and ludicrously low rate of pay. And there is no shortage of anecdotal and survey evidence of the desire for more equal parenting on the part of both mothers and fathers. So, if the evaluation concludes that the SPL scheme has been a monumental failure, overall, it will struggle to blame this on a lack of demand from parents. As the Fawcett Society says, the demand is there.

And we do already know that the SPL scheme has been a monumental failure, overall, because we know that the number of eligible new fathers who have experienced the joys of taking Shared Parental Leave since 2015 is extremely small. According to raw data provided by HMRC in response to numerous Freedom of Information requests in recent years, just 12,600 people [sic] received statutory SPL pay in 2019/20, the fifth year of the SPL scheme. But HMRC has also confirmed both that this raw annual data is inflated by a degree of double counting, and that some 20% of the recipients are female (presumably either a lesbian partner of the birth mother, or the birth mother herself). And, if we adjust the raw data accordingly, to focus on the male recipients (i.e. on fathers), that extremely small number gets even smaller:

In September 2021, HMRC confirmed (in its response to FoI request FOI2021/20932) that, where a spell of SPL pay extends across the boundary between two financial years, the recipient is counted twice (once in each year); assuming the average duration of a spell of SPL pay to be 2 months, the raw data can be adjusted down by a factor of 5/6. And, on 1 February 2021, in its Answer to Parliamentary Question 146798, BEIS stated that HMRC’s raw data on SPL pay recipients “includes both mothers and fathers; however fathers, on average, make up over three-quarters of all recipients”.

Unfortunately, pending the evaluation report, there is a problem with using this (adjusted) HMRC data to estimate the rate of take-up of SPL among eligible fathers: we simply do not know how many eligible fathers there are each year. In 2013, in its impact assessment of the new policy (see Table 7 on p29), BEIS forecast the maximum number of eligible fathers to be 285,000 (a figure BEIS has never felt the need to revise). And using that figure as the denominator suggests a rate of take-up among the pool of eligible fathers of just 2.9% in 2019/20, well short of the Government’s stated target of 25%:

Assumes 285,000 eligible fathers each year. The drop in 2020/21 is almost certainly due to the impact of the Covid19 pandemic and associated economic lockdowns.

However, the actual number of eligible fathers is of course not fixed: it varies from year to year. And, more importantly, for all we know it may be quite different to 285,000. So, given that the 285,000 forecast was a maximum, it may be that the BEIS evaluation of the SPL scheme will come up with new, lower estimates of the actual number of eligible fathers in each year.

Conveniently for BEIS ministers, this would boost the rate of take-up among the pool of eligible fathers. But, as the following chart shows, in 2019/20 the number of eligible fathers would have to have been as low as 150,000 – barely more than half the maximum number forecast by BEIS in 2013 – for take-up among those eligible fathers to have been more than a still risible 5%.

A take-up rate among eligible fathers of even 5.6% is still well short of the Government’s stated target of 25%. So the evaluation report will most likely attempt to recycle the Coalition Government’s original, remarkably unambitious 2013 forecast – based on the findings of a telephone survey of parents conducted eight years previously, in 2005 – of 2-8% of eligible fathers. But the fact is that, four years later, in November 2017, the then business minister told the Women & Equalities Committee of MPs that the Government has a target of 25% of eligible fathers. And with good reason – a rate of take-up of just 2-8% among a (heavily) restricted pool of eligible fathers will not change the world.

Indeed, faced with that dismal official forecast, the response of the then ministers – yes, I’m looking at you, Nick Clegg and Jo Swinson – should have been to ask themselves quite why they were bothering to go to all the trouble of steering a major piece of legislation through Parliament (while disappointing their allies in the family rights sector and irritating the employer lobby).

Whatever, there is a downside for BEIS if its 45 months of analysis does conclude that the actual number of eligible fathers each year is as low as, say, 200,000. Because, from the outset, a major criticism of the SPL scheme and its complex eligibility rules has been that a substantial proportion of new fathers are not even eligible to take SPL. Every year, some 420,000 women start on statutory paid maternity leave (some 360,000 on SMP, and some 60,000 on Maternity Allowance – see below). And, broadly speaking (but see below), that means that, each year, there are some 420,000 new fathers who might want to access some of their partner’s statutory paid maternity leave under the SPL scheme. But 285,000 is just 68% of 420,000.

Indeed, according to ONS data, in 2018 there were 649,626 maternities in England & Wales (plus about another 60,000 in Scotland). Which means – again, broadly speaking – that, in total, there are more than 700,000 new fathers who might want to take some time off work to share the care of their newborn child in its first year of life. And 285,000 is just 41% of 700,000. But a new father can only access statutory Shared Parental Leave if his partner – that is, the child’s mother – qualifies for and starts on statutory paid maternity leave. Somehow, this made sense to Nick Clegg and Jo Swinson.

So, if the BEIS evaluation report ‘reveals’ the actual number of eligible fathers each year to be as low as 200,000, then it will also reveal the rather awkward fact that more than half of those 420,000 new fathers with a partner who qualifies for and starts on statutory paid maternity leave are not even eligible for SPL.

(OK, before you accuse me of being too heteronormative in my approach, the number of women in a lesbian couple who start on statutory paid maternity leave each year is small enough to disregard at this level of analysis. And the bottom line is that the SPL scheme needs to be judged by how many men – not how many lesbian women – take time off work under the scheme to share the care of the child that their partner has recently given birth to: lots of lesbian partners taking SPL to share the burden and joys of parenting won’t do very much to reduce the Gender Pay Gap.)

On the plus side, if you are a BEIS minister, this provides you with a potential solution to the problem of needing to be seen to ‘do something’ to address the monumental failure of the SPL scheme exposed by your evaluation report. With a lofty wave of your hand, you can say that your Government is going to ‘transform’ the scheme and level-up parenthood by – *checks notes* – tweaking the complex eligibility rules. And the necessary legislation will be introduced – *checks notes again* – just as soon as parliamentary time allows (or “in due course”). By which time (you hope), everyone will have moved on. Job done.

It goes without saying that, while extending eligibility to more new fathers is essential and would be very welcome, it wouldn’t ‘transform’ the SPL scheme, and it certainly wouldn’t level-up the challenging business of parenting a new child. If only 4% of 200,000 eligible fathers are using the SPL scheme now, then simply increasing the size of the pool of eligible fathers wouldn’t, by itself, increase that rate of take-up. And, as well as needing to widen eligibility among new fathers, we need take-up among eligible fathers to be much, much higher than 4% if we are to achieve a societal shift towards more equal parenting (the primary purpose of the SPL scheme). That is presumably why the Government has a target of 25%.

Indeed, rather than focus on take-up among the limited pool of eligible fathers, it is arguably more meaningful to use the same HMRC data on recipients of SPL pay, adjusted for double counting and gender, to generate figures for the proportion of new mothers who, having started on statutory paid maternity leave, use the SPL scheme to transfer some of that paid leave to the child’s father. For it is this proportion, rather than the rate of take-up among the (limited) pool of eligible fathers, that tells us most about the impact of the SPL scheme in driving a societal shift towards more equal parenting.

In 2019/20, for example, a total of some 418,000 new mothers started on statutory paid maternity leave (some 361,000 on SMP, and some 57,000 on Maternity Allowance, according to my reconciliation of the available – but conflicting – HMRC and DWP data). And, as the following chart shows, if 8,366 new fathers received SPL pay in 2019/20 (see the table above), that means 8,366 new mothers – just 2% of the 418,000 – transferred some of their paid maternity leave to the child’s father under the SPL scheme.

However, I am pretty confident we won’t see this chart (or anything like it) in the BEIS evaluation report. It seems far more likely that BEIS will simply ‘reveal’ the actual number of eligible fathers to be someway below the forecast maximum of 285,000, hail the thus inflated figures for take-up among this shrunken pool of eligible fathers as ‘broadly in line with our original forecast of 2-8%’, throw in some survey findings about how much dads love their time at home on SPL, and then do very little to reform the SPL scheme other than, perhaps, tweak the eligibility rules and have yet another promotional campaign. The Government may be led by a man with a passion for making babies, but there’s simply no evidence that he or anyone else in Whitehall has the balls to run with the kind of costly reform that would better enable parents who don’t live in an expensively refurbished Downing Street flat to share the labour and joys of caring for their new cherub.

So it is perhaps of more import how Angela Rayner, Justin Madders and others in the Labour Party respond to the evaluation report. In September last year, their otherwise hugely encouraging ‘green paper’ on employment rights was near silent on family-friendly rights, and on SPL all it said (see p10) was “a Labour Government would urgently review the failed Shared Parental Leave system, with reforms to incentivise sharing of leave”. And the last thing we need after a four-year, in-depth evaluation of the SPL scheme is yet another ‘review’ that would simply tell us (again) what we already know. But what about those ‘reforms to incentivise sharing of leave’?

That’s a question I’m going to leave for another post.

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The mother of all statistics

Four months ago on this blog, I posed the question: How many women start on statutory paid maternity leave in the UK each year?

You’d think this would be a well-known and widely used official statistic, freely available on some government website. But you’d be wrong.

As I noted back in September, there is a figure – about 650,000 – that is widely used (or at least relied upon) by academic researchers, journalists, supposedly expert campaign groups such as Pregnant Then Screwed, employment lawyers and even the TUC. But that widely used figure is wrong.

We have known for some years that the figure must be wrong, because there are two sets of official data on recipients of Statutory Maternity Pay (SMP): one unpublished but provided by HMRC in response to numerous Freedom of Information requests in recent years, which is where the figure of ‘about 650,000’ comes from, and one published by the Department for Work & Pensions (DWP). And, as the following chart shows, the figures in those two data sets are not just different – they are very different:

This matters. Because, without knowing how many new mothers start on statutory paid maternity leave each year, we cannot, for example, estimate what proportion of such new mothers use the chronically failing Shared Parental Leave scheme to transfer some of their paid leave to the child’s father (a more meaningful measure of the success or otherwise of the SPL scheme than the rate of take-up among the limited pool of eligible fathers).

Furthermore, as I noted in my September blog post about take-up of statutory paid paternity leave, the DWP’s data set is published under the terms of a Memorandum of Understanding with the Office for Budget Responsibility (OBR), and reflects the Government’s financial delivery plans. So, if it’s wrong, the Chancellor’s annual Budget is also a pile of pants.

Accordingly, late last summer, I set out to get to the bottom of the glaring discrepancy between the two sets of data.

Soon after my September blog post, HMRC confirmed to me (in response to my Freedom of Information request FOI2021/20932), that the figures in their data set are inflated by double counting. In short, where a spell of SMP extends across the boundary between two financial years, the recipient is counted twice (once in each financial year). And, with the average new mother taking nine months of SMP (see below), there are a lot of spells of SMP that extend across the boundary between two financial years. So, there is a lot of double counting in the HMRC data set.

Then, in late October, the DWP confirmed to me (in response to my Freedom of Information request FOI2021/79684) that their data on SMP caseload understates the number of women who start on SMP each year, as the data is average caseload at any point in time, not total caseload over the year.

Fortunately, armed with this information, it is a relatively simple task to adjust the two data sets accordingly. Assuming the average duration of a spell on statutory maternity leave to be nine months (as is suggested by BEIS research, by a statement by BEIS minister Paul Scully to MPs in June 2020, and by the DWP’s quarterly statistics on Maternity Allowance grants), we can adjust the HMRC figures down by a factor of 4/7, and adjust the DWP figures up by a factor of 4/3, to generate a new chart:

We can then (a) average out the remaining small difference between the two sets of data, and (b) add the some 60,000 Maternity Allowance starts each year (from the DWP’s quarterly statistics), to give us figures for the number of women who start on statutory paid maternity leave each year:

You’re welcome.

(Incidentally, I did ask policy officials in the BEIS family rights team – the team that works on e.g. maternity leave and SPL policy – to assist with my reconciliation of the HMRC and DWP data sets, and later to comment on my adjusted figures, but they repeatedly declined to do so. Make of that what you will.)

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Single Enforcement Body: Are we nearly there yet?

Just over two years ago, in October 2019, I wrote on this blog about the long and difficult gestation of the Government’s proposed Single Enforcement Body for employment rights, to “tackle the deeply fragmented enforcement landscape”. And it is now more than 20 years since yours truly, then a lowly employment policy wonk at Citizens Advice, first proposed a consolidation of the three main enforcement bodies – the HMRC minimum wage enforcement team, the Employment Agency Standards Inspectorate, and the then Gangmasters Licensing Authority (now the Gangmasters & Labour Abuse Authority) – into “a single Fair Employment Agency fit for the 21st century, with the legal powers and resources to ‘root out the rogues’ without imposing unnecessary regulatory burden on the great majority of compliant employers”.

Back in October 2019, we were just weeks away from a General Election campaign in which the Conservatives, Labour and the Liberal Democrats would all pledge to establish such a single enforcement body, should they form the next government. You wait 18 years for a manifesto pledge to implement your great policy idea, and then three come along at once. But on 14 December 2019, it was Boris Johnson who triumphantly returned to Downing Street with a manifesto commitment to “get a single enforcement body done”. Or something.

They say every cloud has a silver lining and, as far as this policy wonk is concerned, they are right. Because, later that month, a Brexit-focused Queen’s Speech promised an Employment Bill that will “strengthen workers’ ability to get redress for poor treatment by creating a new, single enforcement body”, as well as “offer greater protections for workers by prioritising fairness in the workplace, and introducing better support for working families”. That is definitely my kind of silver lining.

Needless to say, the promised Bill did not materialise in 2020, and was then surprisingly omitted from the Government’s second Queen’s Speech, in May 2021.

Worse still, in January 2021 a somewhat disgruntled Matthew Taylor – Interim Director of Labour Market Enforcement and a committed and persuasive advocate of a Single Enforcement Body since his July 2017 Taylor Review of Modern Working Practices – had come to the end of his contract, and had exited muttering under his breath that the Johnson-led Government has not “fully grasped the scale of the opportunity provided by the [single enforcement body]” (an opinion reported as early as February 2021, and confirmed earlier this month by the much delayed publication of Taylor’s Labour Market Enforcement Strategy 2021 to 2022).

Matthew Taylor, in the Foreword to his Labour Market Enforcement Strategy 2021 to 2022, submitted to Government on 30 January 2021 and published on 13 December 2021

However … in June 2021 the Government published its response to the high level consultation it had conducted between July and October 2019, and this confirmed the Government’s commitment “to create [a single enforcement body], as set out in the Government’s manifesto. The new body will not just bring together three existing bodies into a single, recognisable organisation, it will deliver a significantly expanded remit. As a result, more vulnerable workers across the country will receive money that is owed to them.” And the response suggested, in words I could have written myself anytime between 2001 and 2013, that as well as the benefit to workers:

Employers – large and small – will benefit from the creation of a more level playing field, with less risk of being unfairly undercut by an unscrupulous or criminally exploitative competitor, and from the availability of more practical, and better co-ordinated, business support services.

Actually, no, those are words I did write myself, in a 2004 Citizens Advice pamphlet setting out the case for a single enforcement body. What the Government’s June 2021 response said is:

This body will not just protect workers, it will also help to provide a level playing field for the majority of employers who respect the law, and who also lose out when unscrupulous businesses cut corners and exploit workers. In these challenging economic times, it is more important than ever that we take action against such behaviour and support responsible businesses to flourish and level-up all areas of the country. The body will also provide more support for businesses to understand their obligations and get things right, in part by bringing three separate organisations together into a single body.

It’s fair to say that, since then, not a lot seems to have happened (other than that, in September, the Labour Party reiterated that it would also “establish and properly fund a single enforcement body to enforce workers’ rights”). And, for sure, there is still no sign of the promised Employment Bill. Hopefully, the Government is quietly getting on with “developing more detailed plans for the body in partnership with the existing enforcement bodies” – one of the key ‘next steps’ set out in June. Whatever, just yesterday, a BEIS spokesperson reiterated that:

Protecting and enhancing workers’ rights is an absolute priority for the Government, which is why we have committed to establishing a single enforcement body to protect vulnerable workers across the UK.

I guess the Government has absolute priorities, and absolute priorities. However, despite its omission from the Queen’s Speech in May, there is nothing to stop ministers bringing forward the Employment Bill in the current parliamentary session (i.e. before the Government’s third Queen’s Speech, expected in May 2022), and with a General Election in May 2023 looking increasingly likely they do need to get a wiggle on if they are to progress what is set to be a mahoosive and complex Bill onto the Statute Book by then.

So, sorry kids, we are not nearly there yet. But we are over half way!

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Reform of Shared Parental Leave: pass the Senokot

While a rampant stomach bug is reported to have caused most competitors in last month’s six-day, 250km Marathon Des Sables in the Sahara a nasty bout of the runs, officials at Kwasi Kwarteng’s Department for Business, Energy & Industrial Strategy (BEIS) face the opposite problem: their marathon evaluation of the chronically failing Shared Parental Leave scheme is stuck fast in the bowels of the Department.

First announced in March 2017 and underway by April 2018, the BEIS evaluation has now been in progress for 43 months, or some 1,300 days. I’ve seen dead snails move more quickly.

Way back in November 2017, the then business minister told MPs on the Women & Equalities Committee that the evaluation would be carried out “next year” – the clear implication being that it would be complete by the end of 2018. And the minister indicated it was already clear that the policy was failing. Asked about take-up by eligible fathers, she candidly stated:

“Take‑up is disappointing. It is under 10%. I would regard 25% as successful. I would regard anything over 20% as very encouraging. We are not going to see those figures, so [our evaluation] is going to demonstrate that we have a lot more to do.”

Four years on, my latest analysis of the relevant HMRC and DWP data indicates that just 1.5% of the 2.6 million new mothers who started on statutory paid maternity leave since April 2015 used the Shared Parental Leave scheme to transfer some of that paid leave to the child’s father. In 2019/20, the fifth year of the scheme, just 8,370 (2%) of the 418,000 such mothers did so. That is simply not enough to help bring about the societal shift to more equal parenting that we need to see if we are ever to eradicate the gender pay gap.

No wonder no one at BEIS is reaching for the Senokot. Because, should they ever release their evaluation report, they will have to tell us what – if anything – they plan to do to remedy this colossal policy failure. And such policy remedies don’t come cheap.

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Employment Tribunal stats: When will I see you again?

So, after a gap of eight months – due to the going live, in March, of a shiny new (and no doubt expensive) Case Management System that it seems cannot reliably count the number of cases it is managing – HM Courts & Tribunals Service has finally (and quietly) published some data on Employment Tribunal receipts.

On 18 October, justice minister James Cartlidge told shadow justice minister Alex Cunningham and other MPs that:

The most recent employment tribunal data covers the period up to March 2021. This is because [the employment tribunal system] has moved to a new case management system, and HMCTS is currently working to incorporate the new IT system alongside longer-established data sources to provide a more complete and consistent data set for this jurisdiction.

However, late last week we learnt (from the minutes of the most recent ET National User Group meeting) that, just four days previously, on 14 October, HMCTS had quietly published a new set of management information on “workload and timeliness for HMCTS criminal, civil and family courts, and tribunals”. And this set of management information includes data on Employment Tribunal receipts (but not disposals) up to August 2021. Maybe someone should have told minister Cartlidge.

Whatever, is this a precious moment? Or do we employment policy nerds have to suffer and cry the whole night through a bit longer?

Well, the following chart adds the new data (for the months March to August 2021) to the previously published figures for the period January 2017 to February 2021. And maybe the number of new ET cases really did plummet by 42% between November 2020 and May 2021, to a level not seen since before the abolition of ET fees in July 2017.

Or maybe some new cases got ‘lost’ while the new Case Management System was being taught how to count the number of cases that it is managing. You decide.

[Update, 14 April 2022: In its latest monthly data release, setting out data up to February 2022, HMCTS has omitted the questionable figures for ET receipts in the period March to August 2021.]

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The incredible shrinking SPL take-up figures

Earlier this month, I wrote here about the law firm EMW and their narrative – eagerly sucked up by a few so-called journalists – about the supposedly low take-up of statutory paternity leave. I suggested that EMW’s narrative is little more than a pile of pants. And today, in response to my Freedom of Information request, HM Revenue & Customs have confirmed that EMW’s narrative is indeed, as the never knowingly understated Independent might report it, “broken”.

In short, EMW have for years based their narrative on HMRC figures for (a) the number of claimants (new fathers, mostly) paid statutory paternity pay, and (b) the number of claimants (new mothers) paid statutory maternity pay. Using the latter as a proxy for the number of fathers who are eligible for statutory paid paternity leave is highly questionable, but in any case it turns out those HMRC figures are inflated by a lot of double-counting. As HMRC confirm:

The number of claimants is the total number of individuals in receipt during that year, irrespective of when the payment first started. Where a given spell of [statutory maternity pay, statutory paternity pay or statutory shared parental pay] extends across two years, the claimant will be included in both years’ figures.

In the case of statutory maternity pay, this inflationary effect is substantial: up to 75%, if we assume (as seems to be the case – see image below) that, on average, women take nine months of SMP (i.e. their full entitlement). But with statutory paternity pay, the inflationary effect is negligible (because claimants can only take one or two weeks of paternity leave).

BEIS minister Paul Scully, giving oral evidence to the Petitions Committee of MPs on 11 June 2020

Maybe this doesn’t matter very much – the few press reports that EMW secured last month with their annual press release about the same set of HMRC data haven’t sparked a national debate about reform of paternity leave. Interestingly, however, EMW are also responsible for another take-up figure that frequently does feature in policy debate.

Only today, I received a document that states “the current UK [shared] parental leave scheme has a very poor uptake, with only around 1% of fathers using the scheme”. And, like many before them, the author of this document was almost certainly thinking of this news release from the TUC in April 2019:

The TUC is today calling for an overhaul of shared parental leave.

Last year only 9,200 new parents took shared parental leave – just 1% of those eligible to do so.

The TUC believes take-up is low because the scheme is so low-paid (£145.18 per week) making it unaffordable for most fathers.

A ‘note to Editors’ at the bottom of the news release states: “the University of Birmingham found that only 9,200 new parents (just over 1% of those entitled to take it) took SPL in 2017/2018”. However, the University of Birmingham’s short September 2018 report makes clear (see Reference 3) that it simply lifted the 1% figure from a (since deleted or moved) press release from … the law firm EMW.

Furthermore, it’s clear (including from a later EMW press release that has not been deleted) that EMW got to that 1% figure (1.4%, to be precise) by dividing HMRC’s figure for the number of claimants paid statutory shared parental pay in 2017/18 (9,200) by HMRC’s figure for the number of women paid statutory maternity pay that year (662,000) – that is, in the same way they calculated the take-up rate for paternity leave.

However, we now know that figure for the number of women paid SMP is inflated (by up to 75%) by HMRC’s double-counting. And in any case EMW are wrong to assume that the number of women who went onto statutory maternity pay is the same as the number of fathers who are eligible to take shared parental leave. In 2013, in its impact assessment of the new policy (see Table 7 on p29), the Department for Business, Energy & Industrial Strategy assumed the maximum number of eligible fathers to be just 285,000 (a figure BEIS has never felt the need to revise).

Whatever, now that HMRC have confirmed how their raw annual figures are inflated by double-counting, and using that BEIS figure of 285,000 eligible fathers, we can adjust those HMRC figures, to remove the likely double-counting in respect of shared parental pay, and so arrive at new estimates for the rate of take-up of shared parental leave among eligible fathers since 2015/16. (Note that we also need to adjust the HMRC figures to allow for the fact that, as confirmed in Footnote 5 of this Answer to a Parliamentary Question by Ed Miliband in February 2021, at least 20% of HMRC’s claimants for statutory shared parental pay are mothers who have converted their maternity leave to shared parental leave, as they must do before the father can access statutory shared parental leave and pay.)

I have previously suggested that SPL take-up among eligible fathers was as ‘high’ as 3.6% in 2019/20. But I didn’t know then that HMRC’s annual figures for the number of shared parental pay claimants include the double-counting that HMRC have now confirmed. I should have known better, frankly, but for what it’s worth here are my new estimates of SPL take-up:

[NB: If you are a nerd and would like to see how I arrived at these figures, just ask and I’ll send you a spreadsheet]

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Is the paternity leave system “broken”?

How many women go on statutory maternity pay in the UK each year?

Go on, have a guess. Or maybe you know the number?

Perhaps you do. Or maybe you only think you do.

According to news reports last month in the Independent newspaper – headline: “Parental leave system is broken: number of fathers taking paternity leave plunges to 10-year low” – and the supposedly specialist journals Personnel Today and People Management, it’s about 650,000:

Only 27% of eligible fathers took time off last year; 176,000 men took paternity leave and claimed statutory paternity pay in the 12 months to 31 March 2021 compared with 652,000 women who took maternity leave over the same period.

The data was released by HM Revenue & Customs following a Freedom of Information request by law firm EMW.

All three news reports were based on a press release by law firm EMW. Indeed, in recent years, EMW have been admirably effective at getting press coverage out of pretty much the same story, based on the same (updated) set of HMRC data: here they are in the Independent and Management Today in July 2019, and the Telegraph and HR News in August 2020. One year it’s ‘Only one third of fathers are taking paternity leave!’, and the next it’s ‘Two thirds of fathers are not taking paternity leave!’ Well done, law firm EMW.

We can only guess how EMW would have framed this unchanging story last month, had the Covid19 pandemic not come along in 2020. This provided them with the somewhat over-dramatic “paternity leave take-up has hit a 10-year low, with only approximately a quarter of eligible fathers (27%) taking paternity leave after the birth of their child” hook, to the excitement of sub-editors at the Independent and the usual suspects such as Pregnant Then Screwed. But then it is hardly surprising, given how much of the workforce was on furlough for much of 2020/21, that some 30,000 new fathers decided to continue at home on furlough, on 80-100% of their normal wages, rather than take one or two weeks of statutory paternity leave on just £150 per week.

Whatever, here’s that HMRC data in full, showing that – *checks notes* – the paternity leave system is broken:

However, there are several problems with this narrative, and the HMRC data on which it is based.

The first problem is the assumption by EMW that the number of fathers (and other second parents) who are eligible to claim statutory paternity pay (i.e. the denominator for their paternity leave take-up rate) is the same as the number of women who started statutory paid maternity leave. There are a number of reasons why this is not the case, but to be fair it’s probably the best proxy available, so we can probably let this one pass.

The second problem is that, if we do assume that the number of fathers (and other second parents) who are eligible to claim statutory paternity pay is the same as the number of women who started statutory paid maternity leave, then we probably need to include in that latter number at least some of the 60,000 women who go on Maternity Allowance, rather than SMP, each year. The legal eagles at EMW seem to have forgotten about Maternity Allowance, but adding the 40,000 employed new mothers who get Maternity Allowance to their base figure of (about) 650,000 would make the paternity leave system look even more “broken”: it would, for example, indicate a paternity leave take-up rate of just 30% in 2019/20, not 32% as suggested by EMW.

However, the third – and biggest – problem with EMW’s narrative is that the number of women who start statutory maternity pay each year is not (about) 650,000, or anywhere near that number.

For a start, according to ONS data, in 2018 there were only 649,626 maternities in England and Wales, plus about 60,000 in Scotland. And a significant proportion of those 710,000 mothers (plus those in Northern Ireland) will not have been in employment (in March 2019, the Department for Business, Energy & Industrial Strategy estimated the employment rate of ‘women of child bearing age’ to be 73%). So it’s just not credible that pretty much all of the 710,000 went onto either SMP or Maternity Allowance.

More to the point, every year the DWP publishes data for benefits expenditure and caseload, including for SMP and Maternity Allowance. This data is published under the terms of a Memorandum of Understanding with the Office for Budget Responsibility (OBR), and reflects the Government’s financial delivery plans. So, if it’s wrong, the Budget is a pile of pants. And, according to this data, between 2012/13 and 2020/21, the average number of women going on to SMP was just 268,000 (within a range of 262,000 to 275,000).

The DWP also publishes quarterly data for Maternity Allowance starts, including a breakdown by employment status (’employed’ or ‘self-employed’), so we can add the some 40,000 employed women who started on Maternity Allowance each year to the OBR-approved number of women who started on SMP. (Note that, in 2020/21, there was also a pandemic-related dip in the number of employed women who started on Maternity Allowance, from 40,000 to 30,000. Believe it or not, neither law firm EMW nor Pregnant Then Screwed have yet made a fuss about this.)

This combined data gives us a significantly different denominator (for calculating the take-up rate of paternity leave) to the HMRC data relied upon by law firm EMW and their friendly (but somewhat uninformed) journalists, and so a rather different picture of the take-up of statutory paternity leave:

Now you might still argue that even this data shows the paternity leave system to be ‘broken’. But I would suggest that a take-up rate of about 70% is not that bad, really, given the stupidly low rate at which such leave is paid and the other barriers to take-up, not to mention the fact that a good chunk of the ‘missing’ 30% will be new fathers who are self-employed, so are not even entitled to statutory paid paternity leave. Indeed, this is one of the reasons why, as mentioned above, law firm EMW are wrong to assume that the number of new fathers who are eligible to take statutory paternity leave is the same as the number of new mothers who start statutory paid maternity leave.

So, which set of data on SMP is correct, and why the discrepancy between the two? Well, at the time of writing, there’s no definitive answer to that, but this recent Answer by Treasury minister Jesse Norman to a Parliamentary Question by Kirsten Oswald MP strongly suggests (a) that the Government favours the OBR-certified data in the DWP’s annual Benefit Expenditure & Caseload tables; and (b) that one reason for the discrepancy is that the HMRC data on SMP provided to law firm EMW (and others) via Freedom of Information requests includes a lot of double counting, because it “includes claimants in each year in which they received statutory payments”.

In other words, a woman who took nine months of statutory maternity leave on SMP from October 2019 to June 2020, say, will have been counted twice by HMRC, first in its figure for 2019/20, and then in its figure for 2020/21. With women taking nine months of statutory paid maternity leave, on average, this means the HMRC data overstates the true figure by up to 75%. (There may well be such double counting in HMRC’s figures for statutory paternity pay, too, but as claimants take only one or two weeks of such pay, the inflationary effect will be negligible.)

Allowing for this double counting would reduce the HMRC figure of some 650,000 SMP starts a year to as little as 370,000 (which would increase EMW’s paternity leave take-up rate for 2019/20, from 32% to 56%). But that still leaves a significant discrepancy between the HMRC data and that published by the DWP as part of the OBR-certified Benefit Expenditure & Caseload tables.

I’m awaiting a response from HMRC to a Freedom of Information request seeking an explanation of the discrepancy, so maybe everything will yet become clear. Or, more likely, it won’t. But watch this space.

(For the record, none of the above is to dispute that our parental leave system is broken. It is very broken, and I have written extensively about just how broken it is. But paternity leave is the least important part of that system and, while it should be better paid and be a Day One right for all workers, including the self-employed, there are much bigger fish to fry in this policy area.)

Update (27 September): In its response to my FoI request, HMRC has confirmed that the figures provided to the law firm EMW (and others) include lot of double-counting:

The number of claimants is the total number of individuals in receipt during that year, irrespective of when the payment first started. Where a given spell of [statutory shared parental leave pay, statutory maternity pay or statutory paternity pay] extends across two years, the claimant will be included in both years’ figures.

So, EMW’s narrative about the take-up rate of statutory paternity leave is indeed ‘broken’.

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Some thoughts on Brexit Unfolded, by Chris Grey

If you’re looking for a forensic yet highly readable account of the batshit-crazy craziness of Brexit and its various leading advocates since they unexpectedly stormed to victory over common sense in June 2016, then Chris Grey’s Brexit Unfolded is the book for you.

The book’s central theme is encapsulated in its subtitle: How no one got what they wanted (and why they were never going to). In short, 17.4 million people were induced to vote for a really dumb and incoherent idea without anyone having a clue how to put the idea and its conflicting, ‘cakeist’ demands into practice. Then, when the intellectually-challenged Tory politicians presented with the task found their deluded ‘cakeism’ coming up against – and being frustrated by – reality, they simply railed, plotted and fought against each other, thus steering the entire process down a vicious spiral of idiocy, puerility and irresponsibility.

In December 2019, this ever more absurd process finally climaxed in the farce of Tory MPs breathlessly voting for a ‘renegotiated’ Withdrawal Agreement little different to the one they had hated so much they had brought down their own Prime Minister, the hapless Theresa May. As a result, the UK left the EU on 31 January 2020. Then, after eleven months of post-orgasm torture, both Tory and Labour MPs spaffed the country’s future up the wall by voting for a ‘future relationship’ deal they had barely had time to read, let alone understand. And now, after just a few months in the glorious sunlit uplands of Brexit, the Brexiters wail that it’s a terrible, ‘punishment’ deal that must be re-negotiated.

With Chris having documented every slap and tickle of these four years of political sadomasochism in real time, via his (rightly) acclaimed Brexit Blog, Brexit Unfolded does not miss a trick in exposing, and eviscerating, the self-defeating lunacy of Brexit and the Brexiters. And the ‘no one’ in the book’s subtitle clearly encompasses Remain voters like me (and Chris himself), who obviously didn’t get what we wanted. But what is oddly missing from the book is any analysis of why hard-core Remainer MPs failed to get what they wanted, namely a People’s Vote and/or the cancellation of Brexit.

Maybe this doesn’t matter very much, given the outcome. But you could say the same about the antics of government ministers and the Tory nut-jobs in the European Research Group (ERG), many of whom are already little more than footnotes in Brexit Unfolded. And, if it is right to note that the Brexiters could and should have done things differently, as Chris does throughout the book, it is surely fair to do the same in respect of Remainer MPs, many of whom seemed to understand the Brexit process no better than the Brexiters.

A recurrent theme throughout Brexit Unfolded is the “persistent, repeated failure [on the part of Brexiters] to understand, or to accept, the two-stage nature of the Brexit process”. This was the ‘row of the summer’ that the People’s Idiot, David Davis, spectacularly lost to the EU in 2017, with the result that the UK could not negotiate the terms of its ‘future relationship’ with the EU until after leaving the EU (at the end of the two-year Article 50 period that Theresa May had stupidly kicked off in March 2017). And I know – because I was there, slogging my guts out in a dingy office in Westminster – that many Remainer MPs did not fully understand this two-stage nature of the process either.

More to the point, in April 2018, the MPs and professional activists behind the launch of the People’s Vote campaign fatally failed to recognise the existential implications of the two-stage process for any such second or confirmatory referendum, with the rather crucial result that their campaign was essentially dead from birth. For, as Chris notes, pretty much the only credible argument for having a People’s Vote later in 2018 or in 2019 was that, in June 2016, the ‘people’ had voted for Brexit without knowing what Brexit would actually look like. Yet, thanks to the EU’s insistence on the two-stage process, the same would be true of any People’s Vote held before the end of the Article 50 period.

I was in the room when uber-pollster Peter Kellner emphasised this point to a meeting of pro-PV MPs in early February 2019, just weeks before Chuka Umunna and Anna Soubry threw in the towel. And, of course, holding a People’s Vote after the expiry of the Article 50 period would be pointless, from a Remainer point of view, as the option of cancelling Brexit and remaining in the EU would no longer be available.

Accordingly, the People’s Vote would have been little more than a re-run of the 2016 referendum, with voters having much the same choice between voting to remain in the EU, or voting to leave for an undefined and therefore unknown future. Throw in the near-insurmountable practical challenges of holding a five-month referendum campaign before the expiry of the Article 50 period, and the never-answered question of which credible ‘leave’ option(s) would be on the ballot paper, and the People’s Vote – the principal vehicle for parliamentary opposition to Brexit from April 2018 onwards – was simply never going to fly. Which means its dogged pursuit was not only intellectually dishonest, but a waste of time and effort that could have been better spent pursuing an alternative strategy.

All of which makes it somewhat ironic, for this reader of Brexit Unfolded, that the only MP to have provided an endorsement for the book’s cover is Caroline Lucas of the Green Party. For it was in Caroline’s dingy outer office that I toiled away on Brexit from late 2016 to April 2019 (when I could stand it no more).

Because, when Caroline says (on its cover) that Brexit Unfolded is “a searing account of the deep failure of political leadership in our country at a moment when it was so desperately needed”, I am reminded that it was Caroline who, in September 2015, enthusiastically voted with David Cameron and the Tories to hold a referendum on a really dumb and incoherent idea, without insisting on sensible, democratic safeguards such as a super-majority and/or votes for 16- and 17-year olds. So, not much political leadership from Caroline when David Cameron was making that “colossal political blunder”, as Chris Grey rightly calls it.

It was also Caroline who (against my advice) unnecessarily voted with Theresa May and the Tories to call the June 2017 general election, a call that Chris Grey rightly lambasts as “the most extraordinary and most ill-judged decision in modern British political history (unless that was Cameron’s calling of the referendum)”, and one which “backfired horribly, leaving [May] leading a minority government dependent upon the DUP”.

It was Caroline who helped launch and then (against my advice) stuck with the near monomaniacal People’s Vote campaign, masterminded behind the scenes by Peter Mandelson and Alistair Campbell, who seemed to have spoken to Tony Blair between almost every one of the Monday meetings that I regularly attended on Caroline’s behalf. And it was Caroline who went along with the campaign’s brutal ‘scorched earth’ policy of shooting-down all the other supposed alternatives to ‘hard’ or ‘no-deal’ Brexit, such as Stephen Kinnock’s Norway Plus. Yet, just a few weeks prior to the campaign’s launch, the EU had confirmed its insistence on the two-stage Brexit process that made a People’s Vote futile (at least in practice, if not in theory).

Then, in December 2018 and early 2019, it was Caroline who (against my advice) agitated and then repeatedly voted against Theresa May’s Withdrawal Agreement. Yes, that Withdrawal Agreement was deeply flawed (because Brexit is a really dumb and incoherent idea). But that repeated rejection by MPs, instead of inducing a humiliated Theresa May to agree to a People’s Vote on the Agreement at the eleventh hour, as Mandelson, Campbell and Lucas had recklessly gambled it would, simply precipitated the utter chaos of 2019, the inevitable (and predicted) replacement of Theresa May with the even more disastrous Boris Johnson, the tragicomic farce of the June 2019 Euro election, a second general election during the precious Article 50 period, and the near destruction of the Labour Party – the only credible alternative government to the Tories. Well done, Caroline and the Green Party.

As if that wasn’t enough, during that chaotic summer of 2019, Caroline’s idea of demonstrating political leadership at a moment when it is desperately needed was first to say that she would ignore a win by Leave in any People’s Vote, and then to call for an all-female Cabinet of National Unity to block Brexit. As the Guardian‘s ace satirist, Marina Hyde, noted at the time, “the Greens want the headlines for a day and they’ve got a plan just batshit enough to secure them.”

So yes, Chris Grey is absolutely right to highlight, as he does in Brexit Unfolded, the “spectacular failures of political leadership and political institutions” during the Brexit process. But let’s not kid ourselves, or try to pre-write history, by pretending that those failures were confined to the Brexiters. Those behind the People’s Vote did not get what they wanted (and they were never going to).

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So, The Moderate Voices have a new album out. Is it any good?

Woman: I lost my job because I said sex matters!

Women: WTAF? This is a terrible set-back for women’s rights.

The Moderate Voices: Trans women are women, non-binary identities are valid, and Jolyon Maugham is super wonderful.

Woman: But … I lost my job! For saying sex matters!

Women: A woman lost her job! Just for saying sex matters!

The Moderate Voices: There is no debate. Byeeeee.

Women: This is really bad for women’s rights. We need to fight this.

The Moderate Voices: Sorry, we have no time for shouty, difficult women. And THERE IS NO DEBATE! Can we sell you a spider broach? Or a ‘Nasty Woman’ T-shirt?

Women: But … what about ‘Courage Calls to Courage Everywhere’?

The Moderate Voices: How dare you attack us! Pile on blah blah. THERE IS NO DEBATE! Just be nice to the women with a beard and a penis. They are all lovely.

Some time later …

Woman: I won my appeal! The Employment Appeal Tribunal has ruled that the belief that sex matters is protected by the Equality Act.

Women: This is a fantastic victory for women’s rights!

Trans allies: This is a terrible ruling by a transphobic, neo-colonialist legal system that will do great damage to the basic human right of women with a beard and a penis to shout down cis women. It is literal violence, and will lead directly to the death of hundreds of thousands of the most vulnerable people in the world.

Jolyon ‘foxy’ Maugham QC: Please donate to my crowdfunder to try and get all these nasty TERFs to shut the fuck up. What? That gets you a block.

Sir Keir Starmer: Trans women are women, and non-binary identities are valid. Self-ID blah blah. Is that enough? Can I go and play football now?

The Moderate Voices: *silence*

Women: Why have the Moderate Voices not said anything about this landmark ruling?

The Moderate Voices: How dare shouty women attack us for not saying anything about a landmark legal ruling on women’s rights! Mental health blah blah. Trans women are so cute, and we just love their world class ability to accessorise! Oh, we are so witty. Unlike those shouty, difficult cis women. The Moderate Voices need to be heard in this debate.

Women: WTAF???

The Moderate Voices: See! We told you! Why can’t the cis witches stop attacking us, and just be nice to the cute trans women with a beard and a penis?

Other Moderate Voices: You are SO brave for speaking out.

The Moderate Voices: Thank you! I love you! You are so brilliant.

Other Moderate Voices: I love you too! You are brave AND brilliant.

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Employment Tribunal claims: Will the Lewis-Thomson Theorem pass the test of time?

With the release this morning of the latest set of quarterly Employment Tribunal (ET) statistics, covering Q4 of 2020/21 (Jan – Mar 2021), and with last week having seen the latest farcical performance of the ‘spot a quirk in the ET stats and get our name in the papers’ PR party trick – this time by Stuart Lewis of Rest Less and Patrick Thomson of the Centre for Ageing Better – I thought it might be interesting to check on how the oh-so-confident predictions of previous performers of the trick have actually turned out.

The first of our past performers is DLA Piper’s legal eagle – but statistical sparrow – Jane Hannon, who in May 2020 secured a nice little piece in the Guardian, under the headline “29,000 claims a year despite 50 years since Equal Pay Act”. This ‘revealed’ that “a consistently high number of workers are alleging that their employers are illegally paying them less than colleagues in similar roles”, and that “the number of claims brought to employment tribunals [is] showing no sign of decreasing”.

Unfortunately for Ms Hannon – who really should have gone to Specsavers – a slightly more than cursory analysis of the ET statistics showed the somewhat inconsistent number of claims decreasing in no fewer than ten of the previous 12 years, including in each of the two most recent years, 2018/19 and 2019/20.

And today, the latest set of statistics confirms that this downwards trend continued in 2020/21, with the number of equal pay claims decreasing by another 65%, to its lowest level in at least the last 16 years. But hey, who could possibly have seen the signs?

Next up in our rogues’ gallery of past performers is Hannah Mahon, a partner at GQ Littler, which modestly describes itself as “the world’s leading employment law firm”. In July 2019, Ms Mahon secured near-identical articles in the Financial Times, the Daily Fail, the Metro and the Times about a 69% “spike” in the number of sex discrimination claims in 2018/19. Ms Mahon attributed this to “a big increase in the public airing of sexual harassment claims” in the era of #MeToo: “It’s a much more public thing now. People are starting to understand their rights and feeling less shy about speaking out.”

Unfortunately for Ms Mahon, a slightly more than cursory analysis of the ET statistics showed that pretty much all of the 69% spike had occurred in Scotland, and only in the two months June and August 2018. In England & Wales, the number of sex discrimination claims had actually fallen, by 8%. Ms Mahon would probably get on well with Stuart Lewis of Rest Less and Patrick Thomson of the Centre for Ageing Better, who failed to spot (or deliberately overlooked) the rather obvious fact that most of their 176% explosion in age discrimination claims in Q3 of 2020/21 occurred only in Scotland, only in October 2020, and had nothing whatsoever to do with firms ditching older staff during the pandemic.

And today, the latest set of statistics suggests that the #MeToo movement has yet to impact on women’s understanding of their rights, or their shyness about speaking out about sexual harassment at work, as the number of sex discrimination claims has fallen by 45% since 2018/19, and is now at a diminutive level rarely seen over the last 14 years.

Next up is Sophie Vanhegan, another partner at GQ Littler, who in June 2019 secured a lengthy piece in People Management – the official journal of the CIPD – about a 56% increase in pregnancy/maternity discrimination claims in 2017/18. Vanhegan attributed this ‘spike’ to the #MeToo movement making women more aware of unacceptable behaviour, especially related to pregnancy: “Things that may have simply just been accepted in the past are now being seen as unacceptable and people are feeling more confident in being able to challenge them” by bringing an ET claim.

Vanhegan was supported by Claire McCartney, a senior policy adviser at the CIPD, who said that “while the removal of tribunal fees may have accounted for some of the increase, there has also been a greater awareness of maternity and paternity rights, and an increased willingness to make claims”. And campaign group Pregnant Then Screwed were quick to jump on the bandwagon, tweeting that “the number of women experiencing discrimination has definitely risen but this [56% increase] is more about women feeling empowered to do something about it – all our hard work feels like it’s paying off.”

Leaving aside the rather obvious point that the #MeToo movement didn’t even start, on the other side of the Atlantic, until half-way through 2017/18, a slightly more than cursory analysis of the ET statistics showed that the 56% increase in pregnancy/maternity discrimination claims was entirely in line with the 60% increase in the number of new ET cases due to the abolition of ET fees in July 2017, just three months into 2017/18.

And today, the latest set of statistics confirms that, if the #MeToo movement has had any lasting impact on the willingness of pregnant women and new mothers in the UK to bring a pregnancy/maternity discrimination claim, it has been in the wrong direction. For, having bounced back to just short of its pre-ET fees level in 2018/19, the number of pregnancy/maternity discrimination claims has since fallen by 21%. Clearly, Pregnant Then Screwed need to be working a little harder.

Who knows, maybe last week’s performance of the PR party trick by Rest Less and the Centre for Ageing Better will prove to be the exception to the rule, and they will secure a footnote in employment policy history as the discoverers of a sustained, upwards trend in the number of age discrimination claims linked to Covid19 and the associated lockdowns. Maybe employment lawyers and policy wonks will sit around talking reverentially about the Lewis-Thomson Theorem, and nodding sagely.

Time will tell. But today’s set of employment statistics doesn’t bode well for the Lewis-Thomson Theorem. After removing another obvious multiple claimant case (in Scotland, in February 2021, with some 1,400 claimants), we find that age discrimination claims have fallen by 27% over the two most recent quarters. Have employers stopped ditching older staff because of the pandemic already? I have no idea. Ask Stuart Lewis at Rest Less.

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