Welcome to the August edition of the AdviserPlus newsletter.
In this month’s newsletter we highlight some of the key legislative developments around neo-natal care, strike action as well as the proposed bill by Government for paid leave following miscarriage.
We also explore in more detail the recently published House of Commons Women and Equalities Committee (WEC) report titled ‘Menopause and the workplace’, take at look at some recent case law concerning banter in the workplace and explore the risks of businesses using the redundancy process as a cover up for other business issues.
Finally, there are some important key dates coming up in the next few weeks that could be beneficial for you to explore and promote within your organisations, including Pension Awareness Day, World Menopause Day and World Mental Health Day.
The government has confirmed it is backing a private member’s bill to introduce paid leave for parents whose babies are admitted to hospital for at least seven continuous days in the first 28 days of their life. The right to paid time off will apply from day one of employment, and provide for 12 weeks of paid leave, in addition to existing family leave entitlements. Business Minister Jane Hunt said: “I hope we can take one concern off the minds of new parents and give them the additional paid time off they need to care for their poorly baby.”
This change in law will also ensure fathers and partners have the flexibility to share caring responsibilities by increasing the amount of paid leave they can access beyond the usual 2 weeks of paternity leave. It will also fit alongside Shared Parental Leave, and the flexibility that this provides, which will mean both parents feel able to prioritise their child, and family, in that precious time after birth. The timing for introduction of the legislation, however, is currently unknown.
Since 21 July 2022, it has become easier for businesses to source temporary workers from an employment business to cover the duties usually carried out by someone who is striking (or to carry out the duties of a worker who has been reassigned to cover the striking worker). This practice was previously unlawful. (The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022).
Government Proposal – Paid leave following miscarriage
A new Bill has been put before Parliament which proposes three days’ paid leave for parents who have experienced miscarriage, ectopic or molar pregnancy before 24 weeks. No rights currently exist and, in these cases, it is up to the employer to offer compassionate leave, sick leave or unpaid leave.
Recent Case Law
Using redundancy as a cover up for other business issues
The EAT has recently upheld an uplift of 25% in compensation awarded against an employer for using the redundancy process as a cover up for other business issues. In this particular case the employee raised a grievance complaining that her role was not actually redundant as headcount was increasing. The EAT agreed the redundancy was a ‘sham’ and supported the increase in compensation awarded against the employer for failing to comply with the ACAS Code of Practice on disciplinary and grievances which they believed to be the real issues behind the ‘cover up’.
It is important to bear in mind if you can’t evidence the redundancy is genuine, the dismissal will be classed as unfair and the lack of any transparency in the process will be heavily considered.
Banter in the Workplace
Whilst banter in the workplace is often commonplace, when it goes wrong it can result in claims of harassment and discrimination.
In Robson v Clarke’s Mechanical Limited, Mr Robson who was referred to at work by colleagues and his manager as ‘Half Dead Dave’ was pulled into a meeting, without warning and was told he was being made redundant. Mr Robson attended an appeal meeting in which he claimed it was discrimination because of his age and the fact that he was the oldest plumber in the company. Whilst there was no direct evidence that the reason for his redundancy was based on his age, Clarke’s Mechanical could not provide any evidence that Mr Robson hadn’t been selected for redundancy because of this.
- Ensure you have a strong selection criterion if you are going down a Redundancy Process.
- Follow the Redundancy process to the letter – including giving warning that an employee may be at risk of redundancy and carrying out consultations.
- Approach banter as a serious issue in the workplace – an Employment Tribunal wouldn’t look at why someone made a remark but instead the impact it had on the person.
- Look at what is being said in the workplace and how someone may be internalising this i.e., making fun of someone’s looks, age or sexuality.
Women aged 50-64 make up the fastest growing demographic in the UK, accounting for almost 70% of working women. If your organisation is not already considering steps to support and retain staff affected by the menopause, then you are encouraged to make it a priority. By making it a priority, you are able to minimise the risk of losing valuable experience and talent, claims being made, retention issues and negative impacts on gender and diversity.
In July 2022, the House of Commons Women and Equalities Committee (WEC) published their report titled ‘Menopause and the workplace’. The report emphasises the important topic of menopause, how it affects those who suffer from its symptoms and the impact this has on the workplace. These findings come after the report indicates that employers’ lack of support for menopausal symptoms are ‘pushing highly skilled and experienced’ women out of work, with the UK currently ‘haemorrhaging talent’.
In recent years there has been a steady increase in the number of Employment Tribunal claims referencing issues concerning menopause as the reason for their grievance. Therefore, it is vital for employers to recognise this and implement steps to ensure that they are supporting staff who are experiencing the menopause as best they can.
What can employers do?
- Providing training and guidance to all managers to ensure they understand how to talk to and encourage employees to raise any menopause concerns, making clear to managers that all people affected by the menopause are affected in different ways.
- Ensuring health and safety checks and risk assessments are carried out, and ensuring the workplace is a suitable place to work for those suffering with menopause symptoms, for example, water coolers, desk fans and ample toilet facilities.
- Developing a specific menopause policy, which is shared and regularly reviewed.
- Regularly reviewing health, safety, diversity and inclusion and wellbeing, and looking at any workplace adjustments including performance management, flexible working, absence management, and sickness reporting procedures.
- Appointing a menopause or wellbeing champion, to act as a point of contact if employees want advice or someone to talk to, who is not their manager
To support employers the government has committed to the appointment of a Women’s Health Ambassador, who will be a permanent member of the UK menopause taskforce. The taskforce is intended to take a holistic approach to menopause support, seeing it as a cross-cutting policy issue rather than simply one about health. It will run public health campaigns and work with employer groups to break down taboos, promote best practice and provide support.
Despite many opinions to the contrary the Government has confirmed that menopause is not going to be made a specific protected characteristic under the Equality Act 2010.
Key dates for your diary
- 15th September 2022 – Pension Awareness day
- 10th October 2022 – World Mental Health Day
- 10th – 14th October – National Work Life Week
- 18th October – World Menopause Day
Please note: The above guidance was correct at the time of writing this article on 31/08/22. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.