Welcome to our latest Coffee Break in which we look at the legal and practical developments impacting UK employers
Employment law challenges in 2023: practical considerations for HR
With businesses still adapting to new ways of working in the current economic climate, Osborne Clarke's Employment team invites you to join us at our webinar for a practical run through of key challenges we are seeing for employers in 2023 and how to stay a step ahead.
We will look at the latest significant case law and government proposals impacting on your day to day employment practices and what steps you should be taking to manage legal risk, including to your employment documentation and training needs. Topics we will cover include:
- redundancies and restructurings – mobility clauses, selection pools, place of work, remote consultation and collective changes to terms and conditions;
- hybrid and flexible working – emerging discrimination risks and government proposals to extend flexible working in the current climate; and
- diversity and wellbeing – prevalent diversity themes including age, philosophical beliefs and neurodivergence and a look at the impact of future digital trends.
After registering you will be able to download the webinar details to save to your calendar. Joining instructions are included within the download file. You will also receive these details by email prior to the webinar.
You can register here.
Menopause and the workplace
The government has published its response to the recommendations made by the Women and Equalities Committee’s (WEC) report "Menopause and the Workplace", rejecting the most talked about calls to immediately commence section 14 of the Equality Act 2010 to enable employees to bring dual discrimination claims and the recommendation that menopause be made a new protected characteristic, including a duty to provide reasonable adjustments for menopausal employees.
This is not surprising given the government's earlier response to the Independent Report on Menopause and the Workplace in which it confirmed that there would be no changes to the Equality Act to introduce specific protection for menopause as an additional protected characteristic or to introduce an action of combined discrimination.
In responding to the call for a new protected characteristic of menopause, the government, while supporting "the aim underpinning this recommendation of ensuring that women are not discriminated against because of the menopause", feels that "the introduction of a new protected characteristic is not the only approach, or necessarily the best approach, to addressing risks of discrimination". It is certainly the case that a successful claim for sex or disability discrimination can already be brought for unfavourable treatment on the grounds of menopause under the existing protected characteristics, but many employers may not be fully aware of this or their duty to make reasonable adjustments where menopause symptoms would amount to a disability.
On the recommendation of activating the "combined discrimination" provisions in the Equality Act, the government stated that the introduction of dual characteristics cannot be done piecemeal and “cherry-picking” implementation only of specific dual characteristics could not be done under the legislation as it stands: implementation would create a further 20 dual protected characteristics in addition to age and sex ,which the government felt would add significant additional burden for employers and service providers and raises concerns over "the potential for creating new areas of dispute over self-identity and concerns about hierarchies of rights". The line is therefore drawn under these two particular recommendations.
Women over the age of 50 represent the fastest-growing segment of the workforce and the government has recognised the need to take steps to support and retain this talent pool, particularly against the backdrop of the rise in the economically inactive over-50s it is keen to encourage back into work. The measures accepted or partly accepted of most significance to employers include:
The recommendation made the WEC was that the government should appoint a Menopause Ambassador to work with stakeholders from business (including small to medium enterprises), unions and advisory groups to encourage and disseminate awareness, good practice and guidance to employers. The Menopause Ambassador should publish a six-monthly report on the progress made by businesses, and this report should include examples of good practice as well as noting particularly poor practice.
The government's response is to accept this in principle – it commits to the appointment of a Menopause Employment Champion to drive forward work with employers on menopause workplace issues and is supportive in principle of having a six-monthly report on progress made by business, including examples of good practice. Decisions on progress reports, including their frequency, will be determined once the relevant appointment has been made and terms of engagement have been agreed.
The recommendation made by the WEC was that the government, in consultation with the Menopause Ambassador, produces model menopause policies to assist employers. The model policies should cover, as a minimum: how to request reasonable adjustments and other support; advice on flexible working; sick leave for menopause symptoms; and provisions for education, training and building a supportive culture
While supporting the ambition, the government does not accept this recommendation, as it does not believe a model menopause policy is necessary at this moment. The government agrees that it has a key strategic role in helping businesses and should lead the way in disseminating good practice, but highlights that many organisations have introduced workplace policies and other forms of support such as menopause champions, training for employees and line managers, and signposting employees to occupational health services.
The response flags that there is much work under way already and that it wants to "focus on highlighting and sharing best practice, which will avoid risk of duplication of efforts. We consider signposting employers to relevant policies within their industry will be more effective, as employers can then adapt and tailor those policies to make them appropriate to their organisation".
HSE and EHRC guidance to support employees
The recommendation made by the WEC was that the Health and Safety Executive and Equality and Human Rights Commission (EHRC) should publish guidance on the legal considerations when supporting employees experiencing menopause, within the next six months.
The government has stated in response that it is accepting this recommendation in part and is developing with the HSE strengthened guidance that will give a set of clear and simple "principles" that employers would be expected to apply, to support disabled people and those with long term health conditions in the work environment. The guidance could also apply where workers are experiencing symptoms such as those that occur in the menopause. The EHRC is an independent public body and the government will share the WEC’s recommendation with it, however, it will be for the EHRC to consider what, if any, future action is needed.
While the government has rejected making menopause a protected characteristic in its own right, it is important to remember that an employee may still bring a successful tribunal claim under existing discrimination legislation (along with related claims such as unfair dismissal).
As reported previously, the past year has seen a notable rise in the number of menopause-related discrimination claims in the Employment Tribunal. You can listen to our podcast with Danielle Kingdon, Employment Partner and diversity specialist, on why menopause is a workplace matter, how raising awareness reduces unnecessary loss of talent and legal risk, and what practical support and adjustments you can consider in your workplace.
Our latest GDPR for HR newsletter
Read the latest edition of our GDPR for HR newsletter taking a glance back at 2022 and looking ahead to some of the developments that employers can expect in this area over the course of 2023.