Equal Pay and Flexible Working Bill [HL]

My Lords, I applaud the personal commitment of the noble Baroness, Lady Morris of Bolton, to the goals of equal pay and flexible working. All of us here share those goals and I welcome the chance to join in the debate. However, I have some concerns about the specific contents of parts of the Private Member’s Bill and about the overall approach. In recent years, we have made great strides on this agenda, but it is important to understand that that has been the result of combining a clear commitment to the goals of equality and fairness at work and working to build a consensus wherever possible for each and every policy change. It is tempting, and in some ways easier, to strike out with a seemingly bold gesture and even to put it into legislation, but without broad-based support, it may not deliver the real change in practice and outcomes being sought. Legislation is only part of the process. A range of matters interlock the issues affecting women's pay and their ability to stay in work after the birth of children. There is no easy answer. Frankly, if there were, we would have tried it by now. As my noble friend Lady Prosser has outlined, the reality for women at work is very complex, starting, of course, with low pay. The effect of the national minimum wage was much more marked for women than for men and is probably the most crucial factor affecting women in work. It was introduced in a detailed and consensual way, save for the Conservatives opposing the idea, although I recognise and welcome their change of view. It pulled in support from employers, unions and many other groups in the Low Pay Commission. It was a detailed and long piece of work. The effect of the minimum wage, together with working family tax credits and childcare assistance, has made it financially possibly and sensible for many women to work, whereas previously they would have been better off on benefits and so denied the role in the workplace which they wanted. Then there were fair rights for part-time workers, introduced in 2000 after long consultation on the practicalities of the changes for employers in all sectors. The majority of those benefiting from those new rights are women. The right to four weeks’ paid holiday was particularly important for women, who were often denied that until it became a legal right, and the more recent increase to 4.8 weeks has primarily affected low-paid women who were, in effect, being cheated by having bank holidays included in their four weeks. Again, one could argue that it was introduced more slowly than many would have wished, for understandable reasons—of course, people want speedy progress—but that legislation and the way it was done has led to a manageable change for employers and real progress for many women who are in part-time, low-paid jobs. The extension of maternity leave and pay and the extension of paternity rights have contributed to a change in attitudes, as well as a change in reality, to the needs of parents of young children and to the well-being of children. Each step has demanded huge negotiation and persuasion. I turn to an issue in the Private Member’s Bill, the introduction of the right to request flexible working. That was developed through the Work and Parents Taskforce which painstakingly, and sometimes painfully, pulled together those with different views to produce a workable outcome. It agreed that the right would extend to parents with children up to the age of six and disabled children up to the age of 14. Of course, many people then and now wanted a stronger right and, of course, many employers did not want any change at all. I remember very clearly, as I am sure many noble Lords do, that when the Bill was introduced in 2003, some said it would achieve absolutely nothing. It was then extended to carers of adults. In all, that change has introduced the right to request flexible working to over 6 million parents. Many parents have exercised that right and crucially it has assisted to bring about a change in attitude in many companies. Nearly 80 per cent of women entitled to request flexibility have done so. So a measure which was both ridiculed and opposed has been a dramatic step forward. I turn to the specifics in the Bill. First, on the proposal to remove the upper age limit of a child for the right to request flexible working, it sounds great to go even faster and further, but the current age limit is six. The Work and Parents Taskforce, which produced the original policy of age six, argued that legislation should be linked to a significant point in a child's schooling. The recent Walsh review also thought that approach was sensible, so the next natural break after six would be 12 to cover the transition to secondary school, a major event in all children's lives, or 16 to cover GCSE year. The review recommended 16 but rejected 18. The Government have announced that they are going for the bolder move of 16. I probably would have gone for 12 and then built up support for 16, although I understand that the legal position for 12 year-olds is somewhat ambiguous. The NSPCC recommends not leaving children under 13 alone except for a short time. However, crucially the Walsh proposal has been fully consulted on, and employers' organisations think its rollout is challenging but manageable. Perhaps I am pushed towards a more measured rollout because, over the years, I have spent too many hours in too many long and detailed negotiations. If we have broad-based agreement for age 16, we should move forward on that. The CBI points out that over 90 per cent of requests are currently met, but over 20 per cent of employers feel that there has been a negative effect on productivity. Many employers are largely positive, but there is a particular challenge for small firms. The CBI opposes the extension to 18 as being likely to have a negative effect on business, but accepts and will work with the recommendations of the Walsh report. On equal pay, I understand the temptation to seize a simple-sounding solution. We feel somewhat desperate at times about making progress in this area, but I question the content of the Bill on it. There is a danger that the addition of the test of reasonableness could make the law unnecessarily complicated. After all, an employer already must point to a genuine, significant, material factor to explain any difference in pay for a man and a woman doing the same work or work of an equal value. I am also somewhat concerned about the proposal to have mandatory equal pay audits where a breach of equal pay is found by a court or tribunal. It is a blunt instrument. Employment tribunals can find a range of issues that need addressing, and equal pay audits, which can be expensive, time-consuming and burdensome, often will not be an answer. The threat is that that may damage the credibility of tribunals. I am uneasy about pay audits being used in this punitive manner, although we have to look at other ways to make progress on equal pay, and I recognise that at times they have been found helpful. I strongly believe that secrecy clauses must be banned in the workplace, and I hope that will be addressed properly in the Government’s forthcoming equality legislation. Finally, I confess that I am a bit puzzled about why the Bill is being introduced now. Most of the measures I outlined earlier were opposed by the Opposition. I shall not bore the House with the many prize quotes from the Opposition in another place outlining why most of these policies were crazy and/or dangerous. Indeed, David Cameron voted against the introduction of the right to request flexible working for parents with children up to the age of six, so this is something of a Damascene conversion on his part. If there is a genuine change of heart, that is to be welcomed, but rather than propose measures in a way that, frankly, could be described as gestures, why not approach this agenda in a genuinely collaborative way? All the crucial measures introduced since 1997 have been done by forging sensible alliances to introduce practical, progressive moves forward and, especially, changes in culture. I strongly recommend this approach to the noble Baroness, who I know is seeking the changes in the workplace that we all want.