Human resources teams in the United Kingdom regularly deal with issues that relate to possible discrimination under the Equality Act 2010 (EqA), the law that codifies various anti-discrimination regulations for employers in England, Scotland, Wales and Northern Ireland. Discrimination issues are often tricky, raising issues that are not clear-cut. For example, does a woman suffering with menopausal symptoms have a disability? Is belief in Scottish Independence or the sanctity of copyright a protected religion or belief? Is one's "caste" a protected category? Below is an update on key recent developments that help clear up some of these areas of uncertainty.
Menopause and disability
Few employers appear to consider the effects of menopause on their workforce and many might not consider a failure to do so as discriminatory. However, given that 7 out of 10 women are still working at the age of 51 (the average age of natural menopause), it appears to be an area where employers could be more conscious of their responsibilities.
One employer that is ahead of the game in this area is the University of Leicester, which has recently gained press attention for its menopause policy. Staff are encouraged to announce in meetings if they are having a hot flush and to use the word “menopause” at least three times a day in an attempt to break down the taboo and the barriers for women experiencing menopausal symptoms.
There is limited case law on disability discrimination arising from the menopause transition, but the recent case of Davies v Scottish Courts and Tribunals Service confirmed that, at least in some circumstances, it will be considered a disability under the EqA. This means that employers are required to make reasonable adjustments for menopausal women (as is required for other disabilities). Ms. Davies experienced relatively severe effects from her menopause transition, including regular heavy bleeding, stress and memory loss. The parties agreed that she was disabled for the purposes of the EqA and, by all accounts, the employer had generally done a good job of making reasonable adjustments for her. The tribunal found, however, that the respondent’s handling of a disciplinary investigation into the claimant’s conduct had failed to consider the impact of this disability on her conduct.
As is the case in the United States, the question of whether an employee is disabled will turn on the specific facts of the case. Under the EqA, claimants must show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Not all women experiencing the menopause transition will be classified as disabled for EqA purposes. Even where menopause transition does not meet the definition of a disability, employers in the UK must still be conscious of avoiding discrimination on the basis of sex.
As a practical point, employers in the UK may want to think about following Leicester University’s example and introducing a menopause policy, which could include offering desk fans to employees, allowing flexible working from home so employees can better cope with sleep disturbances, and offering dedicated quiet spaces to assist with concentration issues.
Believe it or not?
Of the nine protected characteristics set out in the EqA, it is perhaps “religion or belief” that is the hardest to define. To be protected, a belief must be genuinely held. It also must relate to a weighty and substantial aspect of human life and it must be worthy of respect in a democratic society. It must also have a certain level of cogency, cohesion and importance. It is easy to see that there is potential for significant uncertainty. Could a claimant validly bring a claim based on their vegetarianism? If not, then would a steadfast commitment to pacifism suffice?
These questions remain untested by case law, but thanks to the recent case of Gray v Mulberry, we now have some guidance on whether a “belief in the sanctity of copyright” constitutes a belief under the act. The employment tribunal’s view in this case was a resounding “no” – it decided that the claimant’s belief lacked sufficient cogency to qualify. The claimant had refused to enter into an employment contract which assigned intellectual property rights created in the course of employment to her employer. Amongst other things, she was unable to show that she belonged to a group that shared her belief.
Contrast this with another recently decided case, that of McEleny v Ministry of Defence, in which the tribunal decided the claimant’s belief in Scottish independence did qualify as a philosophical belief. Mr. McEleny was involved with the Scottish National Party. He alleged that his security clearance was revoked by the respondent following his decision to run for a senior position within the party. The Tribunal concluded that this belief was of sufficient substance to be worthy of protection. In the current political landscape across the UK, where Brexit has divided opinions in many workplaces, we might ask whether a forcefully held stance on the European Union might also satisfy the test, given the right set of facts.
Protected, one way or another
The government has recently published the result of its consultation on whether "caste" should specifically be added as an aspect of “race” under the EqA, deciding that it should not. It decided, following a formal consultation period, that the existing judgment of the Employment Appeal Tribunal in Tirkey v Chandhok offers the necessary protection to would-be claimants who have been discriminated against on the basis of caste. That case allows such claims to be made where claimants can show that their “caste” is related to their ethnic origin, which is itself an aspect of race discrimination in the EqA.
The government appears to see this approach as proportionate and sensible, given the low number of reported cases relating to caste discrimination to date. However, if the case law becomes obsolete, we might expect to see a change to the EqA in the future.
Lessons to be learned
The law around discrimination is constantly evolving. Changes to prevailing attitudes and public policy will inevitably lead to areas of uncertainty in the law and disputes with employees. Reviewing and updating employee handbooks and policies including equal opportunities, sickness absence and flexible working policies is a useful tool to keep up with the law in this area.