Pregnancy and maternity discrimination: non-work cases

I beg to move amendment 91, in clause 16, page 11, line 20, leave out ‘less favourably’ and insert ‘unfavourably’.

This amendment and amendments 92 to 98 would restate the test for pregnancy and maternity discrimination so as to remove the uncertainty of the wording of the existing test and avoid any risk of the current wording in the Bill being interpreted as reducing protection.

With this it will be convenient to discuss Government amendments 92 to 98.

The amendments will restate the test for pregnancy and maternity discrimination in clauses 16 and 17. The current test for pregnancy and maternity discrimination in the Sex Discrimination Act 1975 has led to the current drafting of the Bill, which states that a woman must not be treated “less favourably” for reasons of pregnancy or maternity. It is unclear, on one view, with whom or with what treatment is to be compared, so we have tried to make the position clearer. It is settled law that a woman claiming discrimination because of pregnancy or maternity is not required to compare her treatment with that of an actual or hypothetical male or female comparator, and the Bill does not change that. Clause 16(7) will clarify the current position by introducing an objective standard by reference to which it can be tested whether discrimination has taken place.

That was what we wanted to achieve by including in clauses 16 and 17 the test of reasonableness. However, a number of organisations, and several right hon. and hon. Members, expressed concern that the effect of the provision, even though it was drafted with the stated  intention, would be to weaken the existing protection against pregnancy and maternity discrimination, which is not what we wanted.

May I declare an interest as chair of the all-party group on maternity? I wish to express our thanks to the Minister for listening to the various groups and individuals who raised their concerns. I know that the change was made with the best will in the world, but it was thought that it did not go in the right direction. I am pleased that my hon. and learned Friend has taken the course that she has.

As my hon. Friend has guessed, despite our original intention, we have acknowledged the unintended consequences. We do not believe that everyone will discriminate against women in such a way. None the less, one can envisage how things might go wrong.

We propose the amendments to remove doubts about the wording and to avoid risking the effective delivery of our policy, which is unchanged. We consulted business representatives as well as those who raised concerns, and everyone seems to be broadly content with the amendments. I hope that they will be supported by both sides of the Committee.

I rise briefly to say how much I welcome the Minister’s recognition of the need to change the wording, which gave concern to a great number of organisations as well as to hon. Members. I am glad that the Government realise that it is most important that nothing creeps unintentionally into the Bill that could destroy its purpose.

Amendment 91 agreed to.

I beg to move amendment 223, in clause 16, page 11, line 22, leave out from ‘if’ to ‘A’ in line 23.

This seeks to probe why protection from discrimination on the grounds of maternity is restricted to 26 weeks under this section.

With this it will be convenient to discuss amendment 200, in clause 16, page 12, line 1, leave out subsection (4) and insert—

‘(4) A person (A) discriminates against a woman if A treats her unfavourably because she is breast-feeding regardless of the age of the child.’.

An amendment to ensure mothers are protected against discrimination when breastfeeding even if their child is older than 26 weeks.

Amendment 223 is meant to probe the Government’s reasons for restricting protection for discrimination on the ground of maternity to 26 weeks after conception. Amendment 200 does the same for breastfeeding after the age of 26 weeks. I wish to discern why, if the clause is about protecting women from discrimination, it is time limited. Surely the point of ending discrimination is just that—to end it.

During a brief discussion on breastfeeding in a previous sitting, the Minister said that it was important for women to breastfeed for six months—I totally agree. All the clinical advice advocates breastfeeding for at  least six months to give a child as much immunity as possible, particularly against allergies, and it obviously is the most suitable feed for the transition to solid food. However, I want to move away from the purpose of encouraging women to breastfeed. As the Minister said, if we name something in the Bill, that which is not named takes on a different import. Putting a reference to 26 weeks in the Bill would therefore give employers and others leave to discriminate beyond 26 weeks. I am sure that that is not the intention, but it gives rise to a concern. There should be no limit, and I do not want anyone to discriminate against a woman who is breastfeeding.

I understand that in Scotland this measure has teeth. If an employer discriminates in such a way, the law comes down on them very heavily. I should like to see us following in Scotland’s footsteps in this regard. I hope that the Minister will clarify why 26 weeks has been put in the Bill. Outside, we are encouraging breastfeeding, so why are we giving leave to those who might wish to discriminate against women who breastfeed post-26 weeks? Surely that cannot be the intention of the Bill.

We have discussed this matter before. Last Thursday, I think, an amendment was tabled to extend protection against maternity discrimination from 26 to 52 weeks. I will not wholly repeat my reasons for resisting the amendment, which was withdrawn, but they apply equally now. However, amendment 223 would have a much more dramatic effect. Without the proposed deletion, the subsection states:

“A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her less favourably because she has given birth.”

If the subsection is amended, it would effectively say, “A person (A) discriminates against a woman if he treats her less favourably because she has given birth ever.” The hon. Member for Oxford, West and Abingdon seems to be nodding his head in favour of that, but such an amendment would create a separate course of action, discriminating against a woman who may be 95 at the time because she gave birth when she was 17. That is going a long way.

My nod was to my hon. Friend the Member for Hornsey and Wood Green, who asked me whether the Minister was right in saying that the amendment does have that effect. We have tabled a probing amendment on the time limit because our previous attempt to do that was lumped in with a group, so we did not debate whether six months or two years was the appropriate time. I certainly accept what the Minister says about the amendment’s effect, but the purpose behind it—questioning whether there should be a time limit as low as 26 weeks—is what we hoped she would concentrate on, having made very effectively the point she has just made.

Therefore, we will not accept the amendment. We introduced protection against maternity discrimination as part of the implication of the gender directive, which prohibits pregnancy and maternity discrimination in accessing and supplying goods and  services, but does not define maternity. The ordinary meaning implies recent childbirth, as opposed to parenthood. The conjunction of maternity and pregnancy in the new directive also implies that childbirth has been recent. Maternity is intended to refer to a limited period of time after childbirth. We defined maternity as 26 weeks, during which time a woman is protected from unfavourable treatment because she has given birth. We are determined that 26 weeks is an appropriate period, for the reasons that I gave last week. In a nutshell, the first 26 weeks after childbirth cover the important first months when mothers are with their babies, during which time exclusive breastfeeding brings health benefits to both mother and child. The period also corresponds, as I said last week, to the period recommended by the World Health Organisation and the Department of Health for exclusive breastfeeding.

Breastfeeding is probably the most obvious feature of maternity. It would clearly be maternity discrimination—unfavourable treatment because of having given birth—to ask someone to leave a restaurant or get off a bus because she is breastfeeding. However, there are other aspects of maternity and other cases in which mothers should be protected from discrimination for a limited time, so if a landlord refuses to let a room to a woman with a three-month-old baby because he thinks that a crying baby would make it more difficult for him to let the other rooms, that is probably maternity discrimination as well.

I would like the Minister to elucidate why we have taken a different decision from Scotland. Scotland’s provision runs to two years, which seems much more equitable. Is there a reason for that differentiation?

Because we are right and they are wrong, basically.

Amendment 200 would prohibit unfavourable treatment of a woman because she was breastfeeding, whatever the age of the child. That is less draconian than the earlier amendment. It would, in a sense, be a protected characteristic all on its own, but in fact breastfeeding is, as I have set out, only one aspect—albeit an important aspect—of maternity.

We favour supporting the period of 26 weeks with special protection, for the reasons I have given about bonding and the health advantages of exclusive breastfeeding during that time, but that does not mean that someone who is treated badly because she is breastfeeding a baby of over six months is unprotected. That will be direct discrimination on the ground of sex, as clause 13 makes clear. She will need a hypothetical comparator, but it is usually obvious that she has been treated less favourably than he would have been. There has been a successful claim of direct sex discrimination on exactly that basis, brought by a former mayor in Trafford, which as I recall was about breastfeeding in the mayoral limousine.

I accept entirely that the Minister’s motives are well meant, based on a point of principle and rational in respect of the exclusive breastfeeding period of 26 weeks. However, she has not made the case that legislation—I think we agreed on this previously in  respect of clause 1—should be relied on to send a message about the importance of breastfeeding during the first 26 weeks. Indeed, legislation should not be used in that way, especially when there is a potential detriment, which is that the message might be—if we are talking about messages, it can work both ways—that because there is specific, as she put it, protection up to 26 weeks, it only goes up to 26 weeks. Some people may feel that that is the case. I agree with the Minister that it does not only go up to 26 weeks, but the message sent by the legislation, which is not sufficiently justified in her terms, runs that risk. Therefore, there is a strong case for her considering carefully whether my hon. Friend’s amendment in this respect is better—and it replicates the situation in Scotland, I would hope.

Well, it does not replicate Scotland. What Scotland has, as I have known throughout but skilfully kept from the hon. Gentleman for a few moments, is the Breastfeeding etc. (Scotland) Act 2005 to safeguard the health of children aged under two by ensuring that they have the right to be fed milk. It covers breastfeeding and bottle-feeding. Anyone who contravenes that law commits a criminal offence. I still think that we are right and they are wrong, but that is the difference.

This provision is not about sending signals exclusively; it is also about making a point of protecting the particular period that we think is so important. I am directed to draw hon. Members’ attention to clause 13(7), in which sex discrimination is defined to show that less favourable treatment of a woman includes less favourable treatment of her because she is breastfeeding. It also states that

“in a case where B is a man, no account is to be taken of special treatment afforded”— anyway, it does not matter about B in this case. The point is that sex discrimination is specifically set out to include less favourable treatment because of breastfeeding, so it certainly is not a case of no protection after six months. It is different protection but it is just as effective, for the reasons I have set out.

I hope, again, that hon. Members can be persuaded to withdraw their amendments on the same point that we discussed last week.

I shall reflect on what the Solicitor-General has said, but I am not totally at ease with the idea that a marker will be put down around 26 weeks. I have some concerns about that, but I take her point that the actual protection is there.

I think it only fair to the Solicitor-General’s Scottish sister, Elaine Smith MSP, to point out that in her letter to us she states that the Scottish Parliament would, as the Solicitor-General said, recognise that the criminal law is not the best way of dealing with this issue, but that it did not have the power to deal with it in any way—whether at 26 weeks or two years—through anti-discrimination legislation because it does not have the necessary powers to allow such a route to be pursued. It is only fair to point out that the Scottish MSP who was behind the private Member’s Bill accepts the point made by the Solicitor-General, but perforce had to handle the matter in the way that she did because of the powers of the Scottish Parliament—if it were to deal with the point separately. It might be argued that it should not have done that, but it did.

I thank my hon. Friend for that helpful intervention. I beg to ask leave to withdraw the amendment but may return to the subject later.

Amendment, by leave, withdrawn.

Amendments made: 92, in clause 16, page 11, line 23, leave out ‘less favourably’ and insert ‘unfavourably’.

See explanatory statement for amendment 91.

Amendment 93, in clause 16, page 12, line 1, leave out ‘less favourably’ and insert ‘unfavourably’.

See explanatory statement for amendment 91.

Amendment 94, in clause 16, page 12, line 2, leave out ‘less favourably’ and insert ‘unfavourably’.

See explanatory statement for amendment 91.

Amendment 95, in clause 16, page 12, line 13, leave out subsection (7).—(The Solicitor-General.)

See explanatory statement for amendment 91.

Clause 16, as amended, ordered to stand part of the Bill.