Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that arose in a recent case that went to a Tribunal in Manchester in relation to a company sending a pregnant worker home during the pandemic.
Anna Denton-Jones
Refreshing Law
If this feels familiar, we have been here before…
In Wales
The clinically extremely vulnerable have been advised to shield in Wales since the 22 December 2020. Shielding for the clinically extremely vulnerable will be paused on 31 March 2021. The fact that the word “pause” is being used indicates that this position may change again in the future so be prepared to be flexible.
Working from home should still be the position wherever that is possible. Where that is not possible, employers will have to take measures to make the workplace COVID secure which may involve changing the person’s duties etc.
In England
The clinically extremely vulnerable have been shielding since 5 January 2021. As of 1 April 2021, they will no longer be advised to do so and will not be eligible for statutory sick pay on the basis of being advised to shield.
The advice is still that they should continue to work from home wherever that is possible, so employers ought to be attempting to facilitate that. Where they cannot work from home, then they are advised to attend their workplace and employers will be under a duty to take measures which will reduce the risk of exposure to COVID-19 in the workplace. That may involve changing the person’s duties etc.
Both
Furlough is an option where the employer decides working from home isn’t possible. The employer would need to consider the discrimination risks associated with, for example, singling out a worker for furlough, when their category of colleague was not also being furloughed.
Anna Denton-Jones
Refreshing Law
Last year, a university law lecturer at BPP University named Elizabeth Aylott was constructively unfairly dismissed and unfavourably treated because of something arising from her disability, despite the fact that other disability related claims were dismissed. She suffered from autistic spectrum disorder, anxiety and depression, which were her disabilities.
A member of the management team talked about her with a colleague and referred to her as a good worker but “mad as a box of frogs”. This comment then got back to her.
She found herself working very long hours including weekends and evenings.
A complaint resulted in a breakdown in the relationship with her employer, in particular, the employer did not allow her to see the complaint or defend herself.
Those three acts were found to be unfavourable treatment, as was the failure to refer her to occupational health.
Other concerns involved a crass and insensitive remark made about how she should have been able to handle her workload – this was inappropriate in the context of what was clearly a poor mental state.
Her employer was found to have failed to reduce her workload or provide extra support or heed any of the indications that she was not coping. Given the numbers of people who are experiencing challenges through the pandemic, you can see how easily an employer can fall into this trap and be found to be guilty of failing to do the right things.
Whenever anybody is complaining of their workload, the hours that they are working or exhibiting other signs that they are suffering from stress and not coping, which could be falling productivity, unusual disengagement or irritability and being more sensitive than normal in relation to normal day to day work related matters, an employer should be considering what they can do to support the employee.
One of the interesting things in this case, is that the employee found a job fairly quickly, so within a 3 month period of her having resigned. However, the Employment Tribunal still awarded her £71,000 worth of compensation for future losses (presumably her new job did not pay as much), £32,000 for past financial losses – so bridging the gap between the jobs, and £20,000 for injury to feelings. The Judge noted that the discriminatory conduct had been integral as to why she chose to resign and that although she had commenced working elsewhere, she remained unwell throughout the period up to the Hearing, when she was able to talk about how the treatment she had received had affected her. This shouldn’t be underestimated.
Managers need to be aware that during a Section 15 of the Equality Act claim that somebody has suffered from discrimination arising from a disability, they need to do the following:
Anna Denton-Jones
Refreshing Law
As if everyone in HR and business is not under enough pressure at the moment, the Employment Appeal Tribunal (EAT), in a case Allay (UK) Ltd v Gehlen has confirmed that it regards training provided 2 years ago on equality and diversity “stale” and ineffective. This was in the context of a racial harassment case. You will be familiar with the idea that in order for an employer to escape liability, if there, is to say that they as employer took all reasonable steps to prevent employees from committing the particular discriminatory act.
It has long been the case that employers present the Tribunal with the fact that the employee protagonist in any harassment case has undergone training and that they have policies of not tolerating such acts of harassment.
If you had asked me to guess how long it took training to become stale and ineffective, I might have said 4-5 years. It is really interesting that the EAT wasn’t going to allow the employer to rely on having given somebody training 2 years ago and suggests that employers are going to need to make some sort of refresher training an annual event. This will of course go for all forms of harassment, so every protected characteristic, not just that of race.
In this particular case, the EAT found that the need for a refresher on a regular basis was amplified by remarks made in the case and the failure of other colleagues to react to the harassment they had witnessed or that had been complained about, and showed the training wasn’t in anyone’s minds. The fact that the protagonist felt that what they had said was just banter was further evidence that the training given had faded from memory and the managers didn’t know what to do when they observed harassment or it was reported to them, suggested that training had also faded from their memories. The particular employer had actually provided further training to the protagonist after the incident so that proved that they also thought further training was necessary, thus the employer couldn’t escape liability.
Having seen a real shift as a result of the MeToo movement, attitudes towards sexual harassment in the workplace and a further big shift as a result of the Black Lives Matter movement means that there is a huge spotlight at the moment over conduct in the workplace and a real sea change in what is expected to be tolerated. It could be that as the generations move into the workforce who are more likely to refuse to accept old norms or tolerate what they see as inappropriate, we see a sea change but for now the employer needs to be driving the change and reinforcing the message whenever it can.
Anna Denton-Jones
Refreshing Law
Katie Day is a Director at RDP International Ltd
Policies and guidelines around mental health are in place.
Established and clear policies have been in existence for pregnant women and parental leave for many years.
Ways of recording reasons for absence and supporting staff (via Employee Assistance Programmes for example) are well used.
The menopause.
Ah.
Not so good there then!
I find this puzzling. Not every woman will experience pregnancy, yet every woman, if she lives long enough, will experience the menopause. As we make up around 52% of the population, and around 57% of that number are of key menopausal age (between 40 and 65). That’s a lot of women who will go through this life transition!
It is estimated that absence due to menopause (where woman are not supported at work) represents a cost to the UK economy of around £7.3 million per year1. According to the Government Report on Menopause, women at menopausal life phase are the fastest growing workforce demographic, and according to the Faculty of Occupational Medicine nearly 8 out of 10 peri- and post-menopausal women are in work.
Women are lying. Around 75% of women say they do not feel confident to cite the menopause as the reason for their absence at work, so are reporting ‘other reasons’ for their absence. They feel really bad about doing this, which further exacerbates their feelings of vulnerability. Ensuring there is a supportive workplace culture is the responsibility of the organisation, not the responsibility of the women who work there.
One in four women consider leaving their job during this life phase.
Combine the above statistics with the legal requirements of employers to support and protect staff, this is a topic that cannot be ignored within the business community.
When asked, women in the UK report the following menopausal experiences as just some that have a negative impact for them at work, there are others2:
Women want to talk with other women going through this life phase, to have more information. They want management awareness of the topic, combined with information and advice from their employer. They want access to support via training sessions and networks.
Not all the responsibility lies with the employer of course. It is shared with the woman herself. We can all take ownership of our health and find out how we can best support ourselves, navigate this transition with the maximum ease and minimum stress and emerge stronger and even more resilient.
First and foremost we need to ‘normalise’ the conversation. What do I mean by this? Well, we all need to feel comfortable talking about ‘the M word’. If, as women, we are uncomfortable verbalising our experience(s), then it is pretty much guaranteed that people around us will also feel uncomfortable. The menopause is a natural part of life, and once we accept and embrace this life transition and see it for what it is – a temporary rite of passage, we are able to recognise that we can, to some degree, sail through rather than stumble through.
Honest and open conversations are the key. We all need to acknowledge the important and valuable contribution women of menopausal age make to the business world. By ‘all’ I mean women themselves and their employers. To lose all that experience and expertise is simply bad business and poor workplace practice.
With two employee tribunals (2012 and 2018),3 both of which went in favour of the claimant (menopausal woman), organisations ignore this issue at their peril. It is increasingly crucial that employers ensure they become, and remain, employers of choice – for everyone. ‘Everyone’ must not exclude women of menopausal age.
We work with some truly wonderful organisations who have the courage to tackle this issue head on, brave enough to make the changes necessary and savvy enough to ensure they retain some of their best talent. Do you work for, or run, one of these organisations? Or is there room for improvement?
Many of our clients are considering making our Supporting people during the menopause session mandatory for every manager they employ.
More and more men within our client organisations are putting themselves forward to be a champion and a ‘point of contact’ for women. They encourage other men to learn, change and support. They are the benchmarks all people need to follow.
Let us all embrace the strength and value of this time in a woman’s life, promote the wisdom, experience and expertise of women and collaborate to create an even more resilient and successful workplace.
Katie Day
Director
RDP International Ltd
RDP International works with organisations on: leadership / communication / all matters ‘midlife’
Join the conversation:
LinkedIn: Midlife Matters Group
Twitter: @Midlife_Matters
Facebook: Midlife Matters
Direct and indirect costs of women diagnosed with menopause symptoms
Journal of Occupational and Environmental Medicine 2013 Apr;55(4): 465-70
Menopause and work: An electronic survey of employees’ attitudes in the UK
Maturitas 76 (2013): 155– 159
Reported in below:
Okill A (2017)
Time to tackle the myths and taboos of the menopause in the workplace
HR News (October 2017): http://hrnews.co.uk/time-tackle-myths-taboos-menopause-workplace/
Katie Day highlights the need for workplace support for menopausal women, emphasising the importance of normalising discussions and providing resources.
We care about your privacy. To help us improve our service, we may collect data to understand how people use our site. By allowing all cookies, we can enhance your experience. This means helping you find information more quickly and tailoring content or marketing to your needs. Some cookies are necessary for the site to function correctly.