Employment Bill: other legislative vehicles are available

Three weeks ago on this blog, I suggested – with a little help from the great Tracey Thorn and Ben Watts – that ministers have shelved their long-promised Employment Bill (again). And on Friday a (rather thinly evidenced) story in the Financial Times indicated that the Bill is indeed unlikely to appear in next month’s Queen’s Speech (on 10 May).

However, as alluded to in my reworking of EBTG’s “Missing”, the withdrawal from service of the ‘Big Bus’ Employment Bill does not mean the Queen’s Speech will not contain one or more smaller, standalone legislative vehicles carrying specific ‘reforms to our employment framework’. So, what might be aboard these compact legislative minibuses?

In December 2019, when the Employment Bill was born, ministers promised it would:

  • Create a new, single enforcement body, offering greater protections for workers.
  • Ensure that tips left for workers go to them in full.
  • Introduce a new right for all workers to request a more predictable contract.
  • Extend redundancy protections to prevent pregnancy and maternity discrimination.
  • Allow parents to take extended paid leave for neonatal care.
  • Introduce a new legal entitlement to one week’s leave for unpaid carers.
  • Make flexible working the default unless employers have good reason not to.

We already know, from the BEIS consultation that ran between 23 September and 1 December last year, that the Government has abandoned the last of these commitments, despite it having been an explicit manifesto commitment (hence the blatantly dishonest title of the BEIS consultation document). There may still be some minor changes to the ‘right to request’ regime, but these could be implemented by tweaks to the secondary legislation (i.e. the 2014 Regulations). So, no legislative minibus.

Despite some snail-paced progress towards the creation of a single enforcement body – in June last year the Government published its response to the consultation it had conducted between July and October 2019, and this reaffirmed the (manifesto) commitment – it is clear BEIS is nowhere near ready to proceed with the necessary legislation, even if Boris Johnson is still on board (a very open question). So, no legislative minibus on this route, either. The TUC will be (secretly) pleased about this.

However, in recent months ministers have come under intense pressure from Conservative MPs such as Luke Hall to deliver on the commitment to introduce neonatal leave and pay, as affirmed in both the Government’s March 2020 response to its 2019 consultation and the March 2020 Budget, which earmarked the necessary funding to deliver the new entitlement from April 2023. And, when pressed during Prime Minister’s Questions on 17 November last year to “bring forward a standalone Bill”, rather than wait for the Employment Bill, Boris Johnson assured the SNP’s David Linden that:

One way or another—I will get back to him on the exact way—we will legislate to allow parents of children in neonatal care to take extended leave, giving them more time during the most vulnerable and stressful days of their lives.

So, I think we can expect a legislative minibus on neonatal leave and pay in the Queen’s Speech. Which may well also have on board the promised new right to one week of carer’s leave. Such a legislative minibus would be universally welcomed, and accordingly would sail through Parliament without difficulty.

Similarly, since 2020 ministers have come under sustained pressure from both the Women & Equalities Committee, chaired by Caroline Nokes, and the Petitions Committee, chaired by Labour’s Catherine McKinnell, to deliver on the July 2019 commitment to extend the period covered by the existing Regulation 10 redundancy protections.

That commitment was made in response to the findings and recommendations of the EHRC’s 2015-16 inquiry into pregnancy and maternity discrimination in the workplace, and an August 2016 recommendation by the Women & Equalities Committee, then chaired by Maria Miller. In their February 2021 report on the gendered impact of the Covid19 pandemic, the Women & Equalities Committee urged ministers to deliver on the July 2019 commitment “in this Parliamentary session”, i.e. by May 2021. And, noting the Government’s failure to do that, in September 2021 the Petitions Committee’s second report on the impact of the pandemic on pregnant women and new parents concluded:

We echo our recommendation from [our July 2020 report] that the Government should legislate as soon as possible to introduce its planned extension of redundancy protections for new and expectant mothers. It must clarify a timeframe for doing this, and, if there is not sufficient parliamentary time to consider a full Employment Bill before the end of the year, the Government should immediately bring forward a short Bill specifically to implement these protections.

So, there could be another legislative minibus, on redundancy protections, in the Queen’s Speech. However, this one would not be universally welcomed, and could face a very rough ride through Parliament, not least because the Labour Party, campaign groups such as Maternity Action and Maria Miller MP have repeatedly said that more meaningful reform is needed. Indeed, such a Bill would be a bit of a gift to shadow ministers.

This means we can’t rule out the possibility that ministers have decided to renege on the July 2019 commitment (or, at least, to leave it rusting away in the bus garage for now). Which might explain why BEIS ministers have recently chosen to kick Maternity Action off their Pregnancy & Maternity Discrimination Advisory Board, the creation of which was another part of that July 2019 commitment – to “establish a Taskforce … to develop an Action Plan on what steps Government and other organisations can take to make it easier for pregnant women and new mothers to stay in work” – and which met for the first (and so far only) time in September last year. So, while the Government has a shiny new Action Plan on Animal Welfare, six years on from the EHRC research it still has no Action Plan to tackle pregnancy and maternity discrimination at work.

The pledge to ensure that tips left for workers go to them in full is an even older one, having first been made in October 2018, following a BEIS consultation that ran from 2 May to 27 June 2016. And it was reaffirmed in the Government’s September 2021 response to that consultation. Given that then business secretary Sajid Javid kicked off this somewhat bizarre sequence of review, consultation, pledge and consultation response as long ago as August 2015, it’s not entirely clear how much priority ministers give to this particular commitment, but I will not be totally surprised if we find a legislative minibus with this on board in the Queen’s Speech. Or if we don’t.

As for the promised new right to a more predictable/stable contract – which dates from the Government’s February 2018 response to the Taylor Review, and was repeated in the 2019 Conservative manifesto – I suspect that one is still in a box marked ‘too difficult’ on a shelf in a room hidden away at the back of Kwasi Kwarteng’s bus garage.

Anything else? Well, in July last year a Government Equalities Office consultation on sexual harassment concluded with the Government committing to “introduce a duty requiring employers to prevent sexual harassment” in their workplaces. As with neonatal leave and pay, a legislative minibus carrying such a preventative duty would be widely welcomed, and would most likely sail through Parliament. And it would provide some cover for not proceeding with the July 2019 pledge on redundancy protections.

And let’s not forget that the 2019 Conservative manifesto included a pledge to “look at ways to make it easier for fathers to take paternity leave”. There’s no evidence of ministers and officials having done any such ‘looking’ since 2019 – and their four-year evaluation of the chronically failing Shared Parental Leave scheme has yet to conclude – but maybe they will surprise us. And, again, this might explain why BEIS have booted Maternity Action off their Advisory Board.

Or perhaps ministers will finally act on the 2016 recommendations of the Equality & Human Rights Commission, the Justice Committee and the Women & Equalities Committee, and the April 2020 recommendation of the Law Commission, to extend the Employment Tribunal time limit.

Time will tell. Not long to wait now.

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The fall and rise of Jamie Wallis MP

In a week when our elected politicians have seemed ever more detached from the (biological) reality in which we mere voters – unqualified to have an opinion, apparently – are forced to live our dreary cis lives, the highlight was surely the Conservative MP for Bridgend, Jamie Wallis – first elected in December 2019 and previously best known for wearing a Union Jack tie and mask in the House of Commons – firing up Twitter at 2:48am to announce to the world that he is trans.

Jamie will however continue to ‘present’ as a man, and will continue to use he/him/his pronouns. Just as he has since he was wrongly assigned male at birth. Or something.

The new poster boy for trans folks has yet to tell the Twittersphere how his wife Rebecca and their two young daughters feel about his new trans identity, but MPs across the political spectrum were quick to announce their solidaritee with Jamiee.

In the Independent, Foreign Secretary and Minister for Women & Equalities Liz Truss welcomed Jamie’s “brave statement”, while Shadow Foreign Secretary David Lammy confirmed that the “incredibly brave and dignified” Jamie will now be able to grow a cervix, should he wish to do so. And, having already tweeted his admiration for Jamie’s “immense courage”, Boris Johnson later opened Prime Minister’s Questions by pledging “the whole House stands with you and will give you the support you need to live freely as yourself”. I hear that Billy Bragg is re-writing the lyrics of one of his songs.

Unfortunately for Johnson, Truss, Lammy and the predictable procession of trans allies standing proud with the UK’s “first openly trans MP” – including luxury communist Ash Sarkar, luxury Conservative Party chair Oliver Dowden, Shadow Women & Equalities Minister Anneliese Dodds, pansexual Liberal Democrat MP and soul whisperer Layla Moran, Scottish National Party MP Hannah Bardell, alleged wig-owner Michael Fabricant MP, human rights campaigner Peter Tatchell, professional loudmouth Patrick Strudwick and, er, the University of Lincoln Labour Society – Jamie’s living freely as himself has so far included:

  • co-owning a ‘sugar daddy’ pimping website that encouraged cash-strapped students to prostitute themselves to rich businessmen (“Whether you’re a boy, girl, straight or gay, there’s a sugar daddy for you. All our sugar daddies are vigorously vetted to verify their suitability and trustworthiness – you provide the companionship they require, they promise to provide the support you need.”)
  • engaging a knife-wielding convicted criminal as his election campaign manager
  • fleeing the scene after crashing his car into a lamp post (or, by some accounts, a telegraph pole) in the early hours of the morning, presumably while tired and emotional, in November 2021. And, in February this year, Jamie was fined £270 (enough to pay to apply for a Gender Recognition Certificate 54 times) in relation to a separate driving incident in August 2021. [Update: Jamie has now been charged in relation to the November 2021 incident, and will appear in court on 10 May. Further update: In court on 10 May, Jamie pleaded not guilty and the case will now go to trial in Cardiff Magistrates Court on 11 July. Serves Jamie right for driving a Mercedes, imho. Further update, 11 July: Jamie was today convicted of failing to stop, failing to report an accident, and leaving the vehicle (that he had just crashed into a telegraph pole) in a dangerous position. He was disqualified from driving for six months, and fined £2,500. And, to cap it all, the judge said he had not found Wallis credible when giving evidence. Apparently, Jamie was on his way to meet his estranged wife, but quite why he was doing so while wearing a black PVC miniskirt remains a mystery. Anyway, Jamie’s dad came at 1am to whisk Jamie away from the scene. Jamie is 38 years old.]

It’s not yet clear which of these failures of judgement were due to Jamie’s gender dysphoria, and which were due to Jamie just being a classic Tory twat. But time will tell whether he is able to build on this unenviable record, shine a light for other trans and non-binary people in Parliament and beyond, prove his ‘suitability and trustworthiness’ to the voters of Bridgend, and take his ‘vigorously vetted’ but rightful place in the cabinet of prime minister Liz Truss, Fishi Rishi or (my favourite) Penny Mordaunt.

And time will tell whether David Lammy, Layla Moran, Anneliese Dodds and all the other trans allies continue to stand in solidaritee with Tory Jamiee. Already, Peter Tatchell’s twin brother Peter Tatchell has taken to Twitter to warn that “would-be trans MP Jamie Wallis is no hero”. #Awkward

Update, 15 July: Tory leadership hopeful Tom Tugendhat has joined the Jamie Wallis fanclub, telling LGBT Conservatives that he is “hugely proud” of Jamie for being the first trans MP.

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Missing: the Employment Bill

[With apologies to Tracey Thorn and Ben Watt]

I step into Hansard
I’m wonking down your street again
And past your door, but you don’t live there anymore
It’s two years since you were in the manifesto
And now you’ve disappeared somewhere, like outer space
They’ve found some ‘alternative legislative vehicles’

And I miss you, like the workers miss their rights
And I miss you, like the workers miss their rights

Could you be dead?
You always were going to be a very big Bill
We’d try to amend you while you would run
We looked at their ‘in due courses’
And their ‘when parliamentary time allows’
Where we always wanted to be

And I miss you (like the workers miss their rights)
And I miss you (like the workers miss their rights)

But now they will only ‘outline employment measures’
Or ‘reforms to our employment framework’
And Kwasi Kwarteng has said
There will be No Big Bus
You’re long gone, but I can’t move on

And I miss you (like the workers miss their rights)
And I miss you, yeah (like the workers miss their rights)
And I miss you

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Good Law Project: Failing at a not-so-technical level

Last week, the Good Law Project, run by my good friend Jolyon Maugham QC, was in the news for claiming to have won a legal case challenging alleged cronyism on the part of government ministers when appointing Dido Harding and others, when in fact it had used £388,635 of crowdfunded donations to lose a legal case challenging alleged cronyism on the part of government ministers when appointing Dido Harding and others.

Well, I say ‘lose’, but Jolyon insists the Good Law Project only lost “at a deeply technical level”, despite the judges having ruled (see paragraph 126 of the judgment) that – while co-claimants the Runnymede Trust were entitled to a nice-to-have but in practical terms near-meaningless ‘declaration’ that the appointment process had not complied with the public sector equality duty – “the [cronyism] claim brought by the Good Law Project fails in its entirety”. Suffice to say, I plan to adopt Jolyon’s approach at my next annual performance review.

And I say ‘friend’, but in fact Jolyon and I have only ever met twice: once when we sat next to each other at a seminar on Universal Basic Income, and once – a few months later – when he mistook me for the then joint leader of the Green Party, so spent several minutes telling me, in breathless tones, how he’d just come from Downing Street, where he’d met with someone really, really important. Unable to get a word in, I nodded along until, my escort duties complete, I let Jolyon into the room where the then joint leader of the Green Party was waiting to meet him.

But if legal claims can be described as having been ‘won’ when, according to the actual judges who ruled on them, they failed in their entirety, then Jolyon and I can be described as good friends. Even if Jolyon blocked me on Twitter years ago. And the fox that Jolyon boasted about having clubbed with a baseball bat on Boxing Day in 2019 can be described as having died, but only at a deeply technical level. (As Maya Angelou said, when someone shows you who they are, believe them the first time.)

Whatever, you might think that £388,635 is a lot of money to spend on a legal claim that failed at a deeply technical level/in its entirety, but that is not even the largest amount that Jolyon and the Good Law Project have raised via no fewer than 18 separate Crowdjustice crowdfunders in recent years.

That distinction belongs to a claim challenging the legality of the Government’s high priority lane for the awarding of contracts (for the supply of PPE) early in the Covid19 pandemic. For this claim, the Good Law Project crowdfunded a staggering £427,399, but this expenditure has resulted only in the issuing, in January this year, of a similarly nice-to-have but in practical terms near-meaningless ‘declaration’ that the operation of the high priority lane was “in breach of the obligation of equal treatment”. The High Court ruled that the high priority lane itself was not unlawful, and that the contracts in question would most likely have been awarded in any event.

Interestingly, Jolyon and the Good Law Project are now seeking to appeal this outcome in the Court of Appeal. Because winning parties don’t usually appeal their own glorious victories. [Update: On 29 April, the Court of Appeal refused GLP’s application for permission to appeal.]

A third claim, for which the Good Law Project crowdfunded a relatively modest £204,900, also resulted, in February last year, in the High Court issuing a ‘declaration’ that the Government had not fully complied with transparency rules on the publishing of Covid19-related contracts, but declining to order any other relief. As I understand it, the Secretary of State’s explanation for this failure to get all the details exactly right was that he and his Department were very busy dealing with the first wave of Covid, and a huge amount of the burden was falling on him, more than he could realistically be across. Oh, hang on … no, that was Jolyon.

Whatever, that’s a total of £1,020,934 to obtain three High Court ‘declarations’ of extremely limited import. As you may have noticed, no minister has been forced to resign or even apologise, not a single allegedly dodgy contract or job offer has been cancelled, and not a penny of allegedly misspent taxpayers’ money has been recovered from alleged villains. So, if indeed these three cases – and the three nice-to-put-in-a-frame-on-the-wall but in practical terms near-meaningless ‘declarations’ – amount to legal victories for the Good Law Project, they are little more than symbolic victories of a somewhat pyrrhic nature. Just imagine what any half-decent legal advice charity – your local law centre, for example – might have achieved with that £1 million.

And then we come to the crowdfunded-claims that have not even secured such a ‘declaration’. First up is a claim challenging the legality of the award of Covid19-related contracts to associates of Dominic Cummings, for which the Good Law Project crowdfunded a stonking £403,931, but which has (so far) resulted only in the Good Law Project losing big in the Court of Appeal. For some reason, it took the Good Law Project a whole month to update the crowdfunder with this rather significant news. But at least that one has been updated, which is more than can be said of the crowdfunder for a claim seeking to challenge the Government’s Levelling Up fund, for which the Good Law Project raised £84,637 before quietly withdrawing the claim in January on account of its “low prospects of success”.

And then there’s the legal claim alleging impropriety in the appointment of a new Charity Commission chair – “Don’t let government muzzle charities!” – for which the Good Law Project crowdfunded £84,552, only to quietly withdraw the claim earlier this month without achieving anything much [an investigation of the appointment process by the Commissioner for Public Appointments has since concluded that the process was “consistent and fair”, and that there was “no impropriety”].

Then there’s the three claims – one seeking to challenge the outcome of the Electoral Commission’s investigation of Leave campaign funding, one seeking to challenge local authority placement of children in care, and one seeking to challenge the award of Covid19-related contracts to associates of (now former) Downing Street adviser Munira Mirza – for which the Good Law Project crowdfunded a total of £152,736, only for the court to refuse permission to bring the claim in each case.

In the last of these three cases, the High Court refused permission because the Good Law Project’s external lawyers (Bindmans LLP) had bungled the lodging of the application, and the Good Law Project is seeking to appeal that decision in the Court of Appeal: a hearing took place on 1 February (i.e. three weeks ago), and at the time of writing the outcome is awaited. [Update: on 24 March, the appeal was dismissed by the Court of Appeal, and the Good Law Project are now making a further appeal to the Supreme Court.]

So, that’s a total of £725,856 to obtain … nothing. No declarations. Zilch. Nada. Rien.

As for the one solid ‘win’ for Jolyon and the Good Law Project among the 18 crowdfunded legal claims – the famous Wightman case that concluded on 10 December 2018 with the European Court of Justice ruling that the UK’s Article 50 Brexit notification was unilaterally revocable, and which Jolyon has modestly described as “the most important case in modern legal history” – that case is surely the epitome of a hollow victory. For the Article 50 notification never came close to being revoked, and the UK left the EU in January 2020. So, apart from Jolyon himself, and the lawyers who received their share of the £190,650 raised through the Good Law Project’s crowdfunder, not one single citizen has benefitted from the bringing of the Wightman case, and none ever will.

Elsewhere, there is a still unresolved appeal against the charitable status of a lesbian and gay rights campaign group that Jolyon doesn’t like (£71,835 crowdfunded to date), which will be heard by the First-Tier Tribunal in May [now September]; an unresolved legal claim relating to the safety of PCR tests (£52,992 crowdfunded to date), which feels a tad passé; a potential legal challenge to Covid19 school attendance guidance, crowdfunded to the tune of £27,810, which appears to have been overtaken by events; and an attempt to force a review of the Airports National Policy Statement (£60,932 crowdfunded to date), which appears to be on hold.

There are also two related claims challenging ministers’ use of private emails and apps to conduct government business (£76,868 crowdfunded to date and £128,251 crowdfunded to date respectively), in which there is a court hearing scheduled for 22-24 March [Update: the first of these two claims was dismissed by the High Court on 29 April 2022, with GLP having crowdfunded a total of £118,211]; and an on/off legal challenge to alleged bullying of Tory MPs, for which £48,335 was crowdfunded before being diverted to the Good Law Project’s work on ‘partygate’).

And, of course, there’s the Legal Defence Fund for Transgender Lives (£181,835 crowdfunded to date), which is being used to launch legal proceedings against NHS England in relation to the healthcare needs of the trans community.

At the time of writing, you can still fling your dosh at many of these 18 crowdfunders, which between them have (so far) raised more than £2.5 million (£2,586,153, to be exact). It’s your money, so it’s your choice. But you might want to consider whether your money might achieve a tad more real world change elsewhere.

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Four-day week: sagas of Icelanders

There being an R in the month, there is a new report making the case for a four-day week.

This month, the focus is on Wales, with a report by think tank Autonomy, commissioned by the Future Generations for Wales Commissioner, concluding that a shorter working week (with no reduction in pay) could “contribute to the goal of a resilient Wales, and also a globally responsible Wales”. And, according to this breathless Autonomy report, no fewer than 57% of the Welsh public support a (hypothetical) Welsh Government-backed scheme to move towards a shorter working week (with no reduction in pay). Which rather begs the question: are the other 43% all masochistic idiots, or what?

Unfortunately, as the report itself quietly acknowledges, implementation of a four-day week for all Welsh workers falls “outside the current legislative capacities of the Welsh Government”. But no worries, because we already know from trials in Iceland, Germany and – *checks notes* – an unidentified charity that the four-day week (with no reduction in pay) is the best policy idea … EVER!

Indeed, according to a BBC news headline in July 2021, the introduction of a four-day week in Iceland has been an “overwhelming success”, with 86% of working Icelanders now entitled to “shorter hours for the same pay”. These lucky Icelanders report “feeling less stressed” and “having more time to spend with their families, do hobbies and complete household chores”, the BBC informs us. And sustainable democracy campaigner Gudmundur Haraldsson is on hand to tell the BBC:

“The Icelandic shorter working week journey tells us that not only is it possible to work less in modern times, but that progressive change is possible too.”

[And today, just hours after I published this post, the Guardian reports that “the four-day working week was trialled in Iceland between 2015 and 2019, and it has since become the choice of 85% of the country’s working population”. And the Telegraph similarly reports that “the four-day working week was tested in Iceland between 2015 and 2019, with 85% of its population continuing to do so”.]*

Yay! A four-day week, for five days’ pay! You can sign this enormously progressive wonk up for that. Well, maybe not the ‘completing household chores’ bit. But more time for my hobbies? Bring it ON.

However, if this all sounds just a wee bit too good to be true, that’s because it is too good to be true. For Iceland has not introduced a four-day week (with no reduction in pay).

Sure, between 2015 and 2019, Reykjavík city council and the Icelandic national government ran two trials of a shorter [sic] working week, with no reduction in pay. These involved a total of some 2,500 workers reducing their working week from 40 to 35 or 36 hours (so, not necessarily to a ‘four-day working week’). And official analysis of the trials concluded that “productivity and service provision remained the same or improved across the majority of trial workplaces”, while “worker well-being dramatically increased across a range of indicators, from perceived stress and burnout, to health and work-life balance”. 

However, these (arguably unsurprising) findings did not lead to the Icelandic government introducing a four-day week (with no reduction in pay) for Iceland’s workforce of some 200,000, which historically has tended to work relatively long hours, by international standards. Rather, in 2019 and 2020 contracts guaranteeing shorter working hours were agreed between trade unions and Iceland’s private sector employers, local councils and central government. And, according to the July 2021 report by think tank Autonomy on which the BBC news report was based, by June 2021 these new contracts covered some 170,000 trade union members (that is, 86% of the workforce).

More to the point, according to the Autonomy report, these new contracts delivered cuts to the previous working week of just 65 minutes in the public sector, and a mere 35 minutes in the private sector. Whoopee woo.

OK, maybe these small but welcome contractual adjustments will lead to greater change in the longer run. Seven months on from the July 2021 Autonomy report and BBC headline, it is still too early to know. All that this month’s Autonomy report on a more resilient Wales is able to tell us about what has transpired in Iceland is that the new collective agreements “leave open the possibility of reduced hours being implemented more widely across the [Icelandic] economy”. Ble mae’r parti?

Yes, the latest data from Eurostat (the statistical office of the EU Commission) indicates that the average weekly hours of full-time workers in Iceland fell from 44 hours in 2019, to … wait for it … 43.5 hours in 2020 (when there was a global Covid19 lockdown). But clearly we’ll need to see data for 2021 and 2022 before we start popping that siampên.

Whatever, the key point is that, while the Icelandic trials provide very helpful evidence of the (undeniable) benefits of a better work-life balance, and of the impact on productivity of a shorter working week, Iceland is not an example of the introduction of a four-day working week, as proposed for the UK by think tanks such as Autonomy and the Fabians.

None of which is to say that we should not be trying to work towards a shorter working week. As noted above, my hobbies (and even my family) stand waiting. But I’m also still waiting for advocates of the four-day week to explain exactly how it could be delivered across the UK economy without suppressing the income of the millions of hourly-paid workers on zero-hours contracts or other forms of precarious employment, most of whom simply cannot afford a 20% pay cut. On this, pretty much all that the latest Autonomy report has to say is that “there is potential to synergise the policy [of a four-day week] with [Universal] Basic Income”, because “the economic security provided by a guaranteed income can give precarious workers more power to decide their working routines”.

To which I say dim ond breuddwyd yw hynny i chi.

*Today’s report in the Guardian about a planned new law in Belgium – also in the Independent – failed to make the rather important distinction between a right to request compressed hours, and a four-day week as commonly understood (and as advocated by campaigners for, well, a four-day week). As the Telegraph managed to concede: “the Belgian model falls short of an actual shortened working week”. I am 86% sure this will lead to me writing another blog post pretty soon.

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Overdue: a Labour Party policy on equal parenting

Recently on this blog, I noted that pretty much all that Labour’s otherwise impressively ambitious September 2021 ‘green paper’ on employment rights had to say about securing a much-needed societal shift towards more equal parenting – a shift essential to ending the Gender Pay Gap, given how much of that pay gap is due to the ‘motherhood penalty’ – is that “a Labour Government would urgently review the failed Shared Parental Leave system, with reforms to incentivise sharing of leave”.

I suggested that, after a marathon, four-year evaluation of the SPL scheme by the current Government, pretty much the last thing we would want from a new Labour government would be yet another ‘review’ to tell us (again) what we already know. But what about those “reforms to incentivise sharing of leave”? And why on earth are they still talking about the sharing of parental leave?

The answer to these questions, I strongly suspect, is that the authors of the ‘green paper’ were heavily influenced by a proposal set out by the Fabian Society and Centre for Social Justice’s Early Years Commission in July 2021 (but seemingly available to and under discussion by at least some of the then shadow ministers for some time prior to publication of the Commission’s report).

Loosely based on the parental leave provisions in Sweden, this proposal would replace both the SPL scheme and the existing statutory maternity leave provisions with a new system consisting of 14 weeks of paid maternity leave (25 weeks fewer than now), 12 weeks of paid paternity leave (10 weeks more than now), and 60 weeks of shared parental leave, to be “shared as a couple wishes”. (In contrast, in Sweden each parent has their own entitlement to parental leave.)

Not to beat about the bush, the proposal is a horrible mess – if its author(s) first established and then followed any guiding principles, it is wholly unclear what those principles might be. And, accordingly, there are a number of reasons why Labour would be unwise to run with it.

Firstly, the proposal fails to recognise the very different purposes of maternity leave and parental leave. Pregnancy and childbirth are not equal endeavours on the part of two parents: unlike new fathers (and other second parents), new mothers need paid time off work to recover from the often severe physical and mental impacts. Plus, many of those new mothers will be breastfeeding (the World Health Organisation and UNICEF recommend that they do so, on demand, for six months).

Similarly, paternity leave is also a health and safety measure, aimed primarily at enabling the father (or other second parent) to support the mother at and immediately after the birth. Becoming a new mother is literally dangerous (especially for black women, who are four times more likely to die during pregnancy than white women). Becoming a new father, not so much.

Parental leave, however, is about parenting. And the goal of policy reform must be more equal parenting over the life of the child, not just in the first 12 or 18 months after birth. The reason those first 12 or 18 months matter so much is that there is overwhelming research evidence that fathers being involved in parenting early in the life of their child leads to greater, sustained involvement over the coming years. And, of course, sharing the care of the child in the first 12 to 18 months enables both parents to retain a strong link with the labour market. But that doesn’t imply or require identical entitlements to paid leave in those first 12 or 18 months.

We know – from BEIS research, a statement by BEIS minister Paul Scully to MPs in June 2020, and the DWP’s quarterly statistics on Maternity Allowance grants – that the average new mother in the UK takes some 39 weeks of statutory paid maternity leave. In other words, she takes her full entitlement to paid leave. And that is hardly surprising, as – contrary to the impression often given by Paul Scully and other government ministers, and even by some academic researchers – the amount of paid leave reserved for new mothers in the UK is short by international standards: in 2020, the OECD and EU averages were 51.5 weeks and 63.5 weeks respectively.

So, were a Labour government to implement the Fabians/CSJ proposal, and cut the duration of statutory paid maternity leave from 39 weeks to just 14 weeks, without reserving any of the 60 weeks of shared parental leave for mothers, it would move the UK to the far left of the following chart. And I’m not sure those are the optics that a new Labour government (or a Labour opposition seeking to win a General Election in 2023 or 2024) would be looking for.

Data source: Table PF2.1.A, Parental leave systems, OECD Family Database, October 2021.

Ironically, had the UK not left the European Union, it would also put the new Labour government at risk of infraction proceedings by the EU Commission. Because, as BEIS noted in its February 2013 impact assessment of the SPL scheme (see paragraph 33 on page 11), under Article 3 of the 1992 EU Pregnant Workers Directive the UK was (while in the EU) required to maintain its provisions at the time of transposition – which in 1999 was 28 weeks of paid maternity leave – not just the minimum of 14 weeks set out in Article 8 of the Directive (this is known as ‘non-regression’). Indeed, it is arguable that it would in any case put the new Labour government in breach of the non-regression provisions of the December 2020 Trade & Cooperation Agreement between the UK and the EU. And, as already noted, it would not sit well with the World Health Organisation and UNICEF recommendation that newborns be exclusively breastfed, on demand, for the first six months of their life.

Yes, under the Fabians/CSJ proposal, new mothers would also have access to some (or even all) of the proposed 60 weeks of shared parental leave. But that brings us to the second reason why Labour would be unwise to run with the proposal: it is simply not clear how or why the proposed entitlement to shared parental leave would work any better than Shared Parental Leave has since 2015.

Sure, a broadly similar system works in Sweden. But the UK is not Sweden, and it cannot be assumed that a system that works in Sweden would produce good results in the UK, where pregnancy and maternity discrimination and other poor practice by employers is widespread and deeply entrenched. Sweden is simply streets ahead of the UK in terms of the economic and social infrastructure, the societal norms, and the workplace culture that are conducive to more equal parenting. Most crucially, in Sweden parental pay is administered directly by the governmental Social Insurance Agency, rather than by employers, the cost of state-subsidised childcare is capped at a fraction of the average cost in the UK, and all children have a right to a place in a nursery school from the age of 12 months.

As the Fabians/CSJ Early Years Commission’s report itself notes, in the UK all too many new mothers “especially from low-income families, return to work earlier than they would have preferred”. So, quite why the members of the Commission thought the solution to that problem is to cut the duration of statutory paid leave reserved for new mothers by two-thirds, from 39 weeks to 14 weeks, is a bit of a mystery.

In short, implementation of the Fabians/CSJ model would drive a coach and horses through the key principle identified by the TUC and others: that the much-needed overhaul of the chronically failing SPL scheme must not involve any erosion of women’s existing rights to leave and pay. In doing so, it would send an appalling message to dinosaur employers all too happy to cut their contractual paid maternity leave to 14 weeks. And it would retain much of the legal and administrative complexity of the SPL scheme so abhorred by parents and employers.

Instead, the new crop of Labour shadow ministers (and their advisers) need to be thinking in terms of individual, non-transferable rights to paid leave for each parent. For it is clear from the international evidence that fathers are more likely to share child care if there is a specific portion of parental leave reserved for them. So, there should be no transferable or ‘shared’ leave, which in any case we know from bitter experience does not work well in the UK. And reform needs to significantly enhance provisions for new fathers (and other second parents), without eroding the existing rights of pregnant women and new mothers.

The Fabians and CSJ are right on one thing though: the need to increase the ludicrously low basic rate of statutory maternity, paternity and parental pay. From April this year the weekly rate of £156.66 will equate to just 47 per cent of a 35-hour week on the adult rate of the National Living Wage (NLW), down from 60% in 2012, and to just 37% of women’s median weekly earnings. Under the Fabians/CSJ proposal, the basic rate of maternity, paternity and parental pay would more than double, to parity with a 37.5-hour week on the NLW – a move that would add £3.4bn to the current annual spend of £2.6bn even without any new entitlements to leave.

Were the average new mother to take 38 of the 60 weeks of shared parental leave potentially available to her under the Fabians/CSJ proposal, in addition to her 14 weeks of maternity leave (i.e. a total of 52 weeks of paid leave, the OECD average entitlement), that would add another £1.8bn per year to the annual spend, even if the average father took no more leave than now. And, were the average new father to take just half of their extra ten weeks of paid paternity leave (as well as the two weeks he already has), and just five of the remaining 22 weeks of shared parental leave, that would add another £1.4bn per year. Yet those average fathers would still be taking only 19% of all leave taken (12 out of 64 weeks), well below the 28% in Sweden.

It remains to be seen whether shadow ministers (including the shadow Chancellor) are up for any – let alone all – of this potential extra cost of some £6.5bn per year, but the bottom line is that increasing the rate of statutory pay across the board is the only credible (and lawful) way to incentivise take-up of parental leave by fathers (as distinct from just making it easier for them to take leave). So, even if take-up of new leave entitlements were lower than assumed in the previous paragraph, the harsh truth is that any serious attempt to generate a shift towards more equal parenting will require serious money.

Which brings me to yet another problem with the Fabians/CSJ proposal. It is inconceivable that any government – even a new Labour government – would be in a position to implement reforms costing billions of pounds per year overnight, in one go. Realistically, such reforms will need to be spread over a decade, or even longer. Which means the reforms will need to be capable of being broken down into practicable stages, each building on the previous stage. And it’s not immediately obvious how the new legal framework at the heart of the Fabians/CSJ proposal could be broken down into a series of incremental, ‘stepping stone’ reforms.

Fortunately for shadow ministers, there is an ‘oven ready’ alternative to the Fabians/CSJ model. Maternity Action has proposed a simple 6+6+6 model consisting of individual, use-it-or-lose-it rights to six months of paid maternity leave (for birth mothers) and six months of paid parental leave for each parent. This would provide new fathers (and other second parents) with their own entitlement to six months of paid parental leave (to be taken in blocks or all in one go), while maintaining (in slightly altered form) the existing rights of pregnant women and new mothers.

This new legal framework (and a doubling of the basic rate of pay) could be introduced in stages over 10-15 years, with annual increases in the total spend of less than £300m in all but one year. And the principles on which the model is based have already been publicly endorsed by more than 20 organisations and trade unions, including the Fawcett Society, Gingerbread, NCT, the Royal College of Midwives, the TUC, Unison, Unite, the Women’s Budget Group and Working Families.

What’s not to like?

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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.

Update 21 June 2022: HMRC has now provided (in response to a FoI request) the relevant raw data for 2021/22, and this indicates that, while use of the SPL scheme by new mothers on statutory paid maternity leave has bounced back from a Covid-induced dip in 2020/21, it is now flatlining at a less than impressive 2%:

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