Employment Eye November 2021

Welcome to our latest round up of employment law developments and what they mean for employers.

Menopause in the Workplace

Following our recent Employment Law webinar, a recording of which can be accessed here, we explore why this topic is important for employers and look at some of the potential issues when managing workers who are experiencing the menopause. We also identify some proactive steps that employers can take to provide support to their workforce.
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Vaccinations for Care Home Workers and Volunteers

With new rules coming into effect on 11^th November 2021 requiring all workers and volunteers entering a CQC-registered care home to be fully vaccinated, or provide evidence of medical exemption, we summarise the Department of Health and Social Care’s operational guidance and the potential employment or workplace issues that may arise for employers.
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Case law update

We consider three different cases, each of which have practical implications for employers. The first considers whether zero hours’ workers are entitled to be paid during a period of suspension; the second, how discrimination can apply to workers who historically would have been considered privileged in society; and the third is a reminder that diversity and inclusion is an ongoing initiative for all employers.
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Menopause in the Workplace

With World Menopause Day last month, the House of Commons Women and Equalities Committee’s inquiry into the menopause and the workplace, and the ongoing media interest generated by, amongst others, Davina McCall, we examine some of the issues and practical steps for employers to take in relation to menopause in the workplace.

1. Is the menopause the same for everyone?

• No, experiences and perceptions of the menopause can differ greatly.
• Individual experiences may be shaped by disability, age, race, religion, sexual orientation, or marital/civil partnership status.
• Non-binary, transgender and intersex communities may also experience menopausal symptoms.
• This is why employers need to understand, raise awareness of and be prepared to support all members of their workforce experiencing the menopause.

2. A reminder of what the menopause is

• It is a natural part of the ageing process for women where they stop having periods and are no longer able to get pregnant naturally.
• It usually occurs between the ages of 45 and 55 years of age, as a women’s oestrogen levels decline. In the UK, the average age for a woman to reach the menopause is 51 years.
• Early menopause can occur at any age.
• Perimenopause is the period prior to the menopause where symptoms start – this can happen months or years before periods actually stop.
• There are over 30 different and wide-ranging symptoms of the menopause, which can be both physical and mental.

3. What are the most common symptoms?

• Common physical symptoms include:
  • Hot flushes
  • Night sweats
  • Headaches
  • Joint stiffness, aches and pain
  • Palpitations
  • Reduced sex drive
• Common psychological symptoms include:
  • Difficulty sleeping
  • Problems with memory and concentration
  • Depression
• Reducing oestrogen levels can also increase the risk of developing other conditions, such as osteoporosis.

4. How long does the menopause last?

• Symptoms can start months or years before periods actually stop (perimenopause).
• On average, most symptoms last for around 4 years from last period.
• Around 1 in 10 women experience symptoms for up to 12 years.

5. Why has this topic captured the public’s interest?

• There has been considerable public and media interest following Davina McCall’s Channel 4 documentary, “Sex, Myths and The Menopause”.
• Other high-profile figures such as Gillian Anderson, Gwyneth Paltrow, Oprah Winfrey and Michelle Obama have openly commented on their experiences of menopause or perimenopause.
• The Government has recently announced more support for women experiencing the menopause with a new Menopause Taskforce and reduced cost of Hormone Replacement Therapy (“HRT”). The Minister for Women’s Health, Maria Caulfield, is quoted as saying: “We have heard loud and clear from women across the country and MPs that menopause support is a key issue we as a government need to do more to address.”

6. Why should employers pay attention?

• To support their existing workforce: the menopause can have a significant impact on daily life for some women; potentially leading to attendance or performance issues, or other challenges in the workplace. Employers also have a legal duty to provide a safe place of work and ensure working conditions don’t exacerbate symptoms.
• To avoid unnecessary absences or exits: the co-author of a Government Report on Menopause identified that menopausal women are the fastest growing demographic in the workforce. However, a CIPD survey identified that:
  • 59% of working women between the ages of 45 and 55 who are experiencing menopausal symptoms says it has a negative impact on them at work;
  • Nearly 30% said that they had taken sick leave because of their symptoms; and
  • Almost 900,000 women in the UK left their jobs (over an undefined period) because of menopausal symptoms.
• To maintain workplace productivity: the CIPD survey suggests that a number of women are taking sick leave or leaving the workforce whilst “at the peak of their experience” thus impacting general productivity and also knowledge transfers within teams.
• To protect diversity in senior positions: women within this age group are likely to be in or eligible for senior management roles; they may not achieve those positions, or may choose to exit the workforce, as a result of their menopausal symptoms. This has a knock-on impact on diversity at executive levels, contributes to the gender pay gap and feeds into disparity in pensions.
• To plan ahead: the House of Commons Women and Equality Committee’s inquiry into existing discrimination legislation and workplace practices around the menopause has recently closed to submissions. If the Committee identifies that existing discrimination legislation is insufficient in protecting women with menopausal symptoms in the workplace, one possible outcome is that the Equality Act 2010 may be amended to make menopause itself a protected characteristic.

7. What is the current legal framework to protect workers going through the menopause?

• The Equality Act 2010 protects workers against discrimination. Whilst menopause is not (yet) a protected characteristic, individuals are protected from discrimination as a result of their sex, age, gender reassignment or disability (i.e. protected characteristic); from harassment related to a protected characteristic; from victimisation as a result of claiming or complaining about discrimination; or, if the condition amounts to a disability, the employer’s failure to make reasonable adjustments.
• The Health and Safety at Work Act 1974 requires employers to provide a safe place of work; this extends to the working conditions for workers experiencing menopausal symptoms.
• The implied duty of trust and confidence between employer and employee means that employers “must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence”.

8. What potential pitfalls are there for employers?

• Employers may be found to have discriminated against a worker in relation to the menopause if they:
  • Don’t consider all the facts - for example, if an employee’s behaviour could be linked to menopause – before initiating any HR action;
  • If they have a disability, fail to make reasonable adjustments in or to the workplace to support an employee suffering from symptoms; or
  • Make comments or fail to prevent unwanted conduct towards an employee, which relates to the menopause.

As a result, it is important that employers take menopausal symptoms seriously and are mindful of this topic when considering their strategic workforce agenda around recruitment and retention.

• The number of cases in the Employment Tribunal citing menopause is increasing. In 2019, there were approximately 6 cases; in 2020 that had increased to 16. In 2021, there were 14 cases in the first 9 months of the year alone. The following cases highlight some of the challenges for employers:
  • An employee was dismissed due to poor performance, but she had previously given her employer a letter from her doctor explaining that she was going through the menopause “which [can] affect her level of concentration at times”. No investigation of her symptoms was carried out, in breach of policy. Instead, the manager used his wife’s own experience of menopause as a comparator. The ET upheld claims of direct sex discrimination and unfair dismissal. (Merchant v BT plc [ET/1401305/11])
  • An employee claimed she was subjected to harassment and abuse because she was female and going through the menopause. Her line manager did not offer any help or support, and her attempts to escalate were unsuccessful. After suffering a breakdown, she agreed to return to work on shorter hours, but these were subsequently withdrawn after a week. She resigned. The ET upheld claims of sex and age discrimination (A v Bonmarche Ltd (in administration) [4107766/2019])
  • An employee suffered from an overactive thyroid and symptoms of the menopause. At a preliminary hearing it was established that she had a disability as her symptoms, which were predominantly as a result of the menopause, were long-term, having persisted for more than two years, and her difficulties with concentration, memory and fatigue had a substantial impact on her ability to carry out her day-to-day work tasks, amongst other things. She was permitted to pursue her full claim of direct and indirect disability discrimination and failure to make reasonable adjustments. (Daley v Optiva [1308074/2019])
  • An employee, who was dismissed following the breakdown of her relationship with her manager, claimed unfair dismissal and disability discrimination due to symptoms arising from menopause and depression. As her employer was unaware of her symptoms or of her depression, it was held that they could not have reasonably known that she was disabled at the relevant time. Her claim was dismissed. (Gallacher v Abellio Scotrail Ltd [4102245/2017])

9. What can employers do to provide support?

• During our recent webinar on this topic, 98% of attendees believed that their organisation should do more to raise awareness about supporting colleagues experiencing the menopause; and only 2% would be “very confident” that their managers would be competent to deal with employee issues or concerns involving the menopause. Communication and training are therefore critical to ensuring workers feel supported in the workplace.
• We are currently working with clients to draft menopause or menopause-related policies, to create bespoke training for managers, and to set up employee networks to provide internal support to colleagues experiencing the menopause.
• Other actions that employers should consider include:
  • Promoting an open, trusted and transparent team and office culture, where workers feel able to talk about their menopause symptoms if they wish.
  • Ensuring sickness absence and performance management procedures are up-to-date and appropriate for workers with menopause symptoms.
  • Developing and rolling-out awareness training for all staff, not just managers, to enable them to talk to their colleagues and identify and deal with any concerns in a sensitive way.
  • Considering and identifying other support measures, or changes, that could be offered to workers suffering from menopausal symptoms.
  • Carrying out health and safety risk assessments to ensure menopause symptoms are not made worse by the workplace or work practices.
  • Appointing a menopause or wellbeing champion to work with HR and senior leadership to raise awareness and promote an age and gender inclusive workplace.

10. Where can employers, or workers, find more information?

• NHS: Menopause
• CIPD: The menopause at work: guidance for people professionals | CIPD guides
  • The Menopause at Work: Top Priorities for People Professionals
  • The Menopause at Work: A Guide for People Professionals
  • The Menopause at Work: A guide for Line Managers
  • Manifesto for Menopause at Work
• ACAS: Managing the effects of the menopause: Menopause at work
• The Menopause Doctor (now Balance): Balance
• UNISON: Menopause | Key issues
• International Menopause Society: Professional Resources

For the On Demand recording of our recent webinar “Employment Law Update: Menopause – Raising Awareness and Practical Steps”, click here. The slides can also be accessed here.

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Vaccinations for Care Home Workers and Volunteers

From 11^th November 2021, anyone who works or volunteers in the indoor premises of a Care Quality Commission (CQC) registered care home must be fully vaccinated or have an exemption.

The rationale behind the mandate is to protect the workers and residents of such care home – who may be at high risk due to age, underlying health conditions or a disability – from the potential deadly combination of Covid-19 and flu.

The Department of Health and Social Care has published an operational guide to support the implementation of The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (“Regulations”), and steer registered care home providers to comply. An overview is set out below.

Who do the Regulations apply to?

Most people who enter the care home for work, including:

• Staff, including new recruits
• agency workers
• contractors or self-employed people hired to carry out work in a care home, for example tradespeople, occupational therapists or hairdressers
• people not employed by the care home who need to enter for work, for example doctors, nurses and CQC inspectors
• volunteers
• work experience students
• job applicants attending an interview

This list includes individuals who live in Scotland or Wales but work in a CQC-registered care home in England.

Who is exempt?

• Anyone with a formal medical exemption
• Current care home residents and service users
• Friends and family of a current resident
• Workers who do not enter the care home at all, for example a gardener
• Someone providing emergency assistance or urgent maintenance
• Members of the emergency services who need to enter the care home to carry out their job
• Anyone visiting a dying resident
• Anyone giving bereavement support to a resident after the death of a relative or friend
• Anyone under 18 years of age

Checking someone is vaccinated

The person registered with the CQC as the manager or service provider (the “Registered Person”), or their authorised delegate, must, on the first occasion that they enter the premises, satisfy themselves of (a) the identity of a person entering the care home and (b) their proof of vaccination. How they do this is up to each care home. For example, they may choose to set up a check point at the entrance to the building.

Subsequent visits or entry into the care home can be checked via the care home’s records rather than having to recheck each time.

How to show proof of vaccination

Individuals living in England can demonstrate their vaccination status using the NHS Covid Pass service via the NHS App, the NHS website or their NHS Covid Pass letter. The NHS Appointment card showing vaccination appointments cannot be used.

Individuals living in Scotland can obtain proof from NHS Inform.

Individuals living in Wales can obtain their NHS Covid Pass in Wales.

If an individual has been vaccinated outside of the UK, they will be unable to obtain proof of vaccination in the same way. They can, however, self-certify as medically exempt from the Regulations until such time as the DHSE recognises people who have been vaccinated overseas.

Recording vaccination details or exemption status

The Registered Person should keep a record of:

• the vaccination/exemption status for staff members and the date that the status was last checked;
• the vaccination/exemption status of those entering the care home, unless exempt, and the date that the status was last checked.

Specific clinical details behind an exemption do not need to be captured.

Once recorded, records can be used to re-check an individual’s vaccination or exemption status rather than requiring them to undergo a new check each time they enter the premises.

Care homes must ensure that they comply with the UK’s data protection laws, including the Data Protection Act 2018 and the UK GDPR, when recording and processing personal health data.

Potential Employment or workplace Issues

Care homes should have spent the last four months communicating and engaging with their staff and service providers about the Regulations and looking at their policies and working practices to ensure compliance by 11^th November. However, what is the situation where a member of staff, or service provider, is not yet vaccinated or refuses to get vaccinated before the deadline?

a. Service provider is not yet vaccinated

The Registered Person can not allow them to enter the premises, unless they are exempt. This may have a knock-on impact on the residents or running of the care home and therefore early engagement, and clear communication, with the service provider to make them aware of the requirements is imperative.

b. Staff who are not yet vaccinated

Where a member of staff is not vaccinated, and can not provide evidence that they are exempt, they must not be allowed to enter the premises.

The care home should explore all options with the individual, making timelines clear and explain the potential impact if they fail to provide evidence of their status within those timelines and having in mind the ongoing staffing requirements of the care home. Options may include:

• redeployment into a role where vaccinations or medical exemption is not required, possibly outside of the care home facility;
• paid or unpaid leave where the member of staff demonstrates a willingness to have the vaccination, or has not yet completed the full course, or there has been a delay in obtaining evidence of medical exemption.
• a temporary period of training at home or away from the care home to enable the staff member to obtain their vaccinations or evidence of exemption.
• only where all other options have been exhausted, dismissal or termination of contract.

c. Staff who refuse to get vaccinated

Where a staff member refuses to get vaccinated, the care home should explore their reasons with them and explain the potential impact of not being vaccinated on their ongoing employment or engagement within that setting. The Registered Person, or other managers within the care home, may be able to offer support or further information about the vaccination programme to allay the individual’s concerns.

If they still refuse to get vaccinated, the care home should consider redeployment opportunities. If there are none, then there may be no other option but to dismiss the employee or terminate the contract of the worker.

d. Fair Reason for Dismissal

Dismissal should always be the last option, but the Regulations may provide a fair reason to dismiss an employee over the age of 18 years who is not vaccinated or medically exempt, on the grounds that the employee cannot continue in their role without the employer contravening a duty or restriction imposed by law. Alternatively, it may be for “some other substantial reason”.

It will not be a redundancy situation if the care home still requires the same number of employees to carry out the work.

e. Payment of Notice Pay

The operational guidance states that, ordinarily, not meeting the requirement to be vaccinated or have a medical exemption will not justify dismissal without notice. Appropriate statutory and/or contractual notice should therefore be paid in a dismissal situation.

f. Discrimination

When selecting employees or workers for redeployment opportunities, or for dismissal or termination of contract, or indeed when applying a vaccination policy to the workforce, care should be taken to ensure that there are no direct discrimination issues.

The general application of the Regulations in the care home setting however is unlikely to amount to discrimination; the operational guidance specifies that a care home will not breach the Equality Act 2010 on the grounds of age, disability, religion or belief if it does anything it is required to do pursuant to the Regulations.

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Case law update

This month we report on three separate cases that each have practical implications for employers.

1. Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust

The EAT in this case clarified that, unless the contract expressly provides otherwise, workers on zero-hours contracts are not entitled to receive pay during a period of suspension.

Facts

Mr Agbeze was a healthcare assistant who provided his services to Barnet Enfield and Haringey Mental Health NHS Trust (the “Trust”) as a bank worker on a zero-hours’ contract. Under the terms of his contract the Trust was not obliged to offer Mr Agbeze any work at any time, and he was not obliged to accept any assignment offered to him. He was only entitled to be paid in respect of assignments offered to, and accepted by, him.

Following an allegation of misconduct, the Trust suspended Mr Agbeze from the bank for a number of months whilst an investigation took place. This meant that he was not eligible to be offered any work during the suspension period. Once the investigation concluded, and the Trust agreed to lift his suspension, he was again eligible to be offered and accept work assignments.

Mr Agbeze brought an unsuccessful claim against the Trust for unlawful deduction from wages, on the basis that there was an implied term that he was entitled to be paid average wages during the suspension period, so long as there was work available to do. He appealed to the Employment Appeal Tribunal.

EAT Judgment

The EAT (in their Judgment handed down on 24 September 2021) held that where there is an express term for payment in a zero-hours’ contract, there can be no implied terms which conflict with that. In this case, the express terms of the contract were clearly that Mr Agbeze was entitled to be paid wages only when work had been offered by the Trust and accepted and carried out by him. No work had been offered during his suspension period and therefore he was not entitled to payment during that period.

The EAT also held that where there is no express contractual term governing payment during a suspension period, such a term should not be implied as it would materially alter the nature of contractual relationships of this type.

Comment

Whilst there have been some previously inconsistent ET decisions on this point, the EAT has made it clear that where the contract does not expressly provide for payment during a suspension period, workers on zero-hours contracts are not entitled to receive wages if suspended for any period of time.

For employers who engage workers on zero-hours’ contracts or other non-standard forms of contract, it would be sensible to review the contractual terms to ensure that it is clear to both the worker and the employer in exactly what circumstances the worker will be entitled to payment, and to tighten up provisions if needed.

2. Bayfield and Jenner v Wunderman Thompson (UK) Ltd and others

This case attracted a significant amount of publicity earlier this year and is a reminder that discrimination can happen to almost anyone in the workplace, even those who, historically, may have been in a privileged position.

Facts

Mr Bayfield and Mr Jenner were white British, heterosexual, middle-aged creative directors at the advertising agency, Wundermann Thompson. In April 2018, the agency published its gender pay gap report for 2017, revealing a high gender pay gap of 44.7%. In the accompanying report, the agency noted the disappointing numbers and set out initiatives to address the imbalance.

A month later, the agency’s HR Director and CEO attended the Creative Equals Conference at which the executive creative director was giving a presentation. The presentation included a statement that the agency wanted to “obliterate” its reputation for being full of “straight white men”.

The presentation specifically contained a slide with the words “white, British, privileged, straight, men” struck through with a black line.

The messaging caused some concern within the agency’s Creative department, a largely male-dominated team. Mr Bayfield and Mr Jenner sought clarification of what was actually meant by the presentation on email. The pair were subsequently called to a meeting with the CEO, which descended into a heated discussion and was allegedly perceived to be a challenge to the agency’s plans on the gender pay gap issue.

Around the same time, the agency decided to make redundancies within the Creative Department. Within two days of their meeting with the CEO, both Mr Bayfield and Mr Jenner were selected for redundancy. They brought various claims against the agency.

ET’s Judgment

In a lengthy judgment, the Employment Tribunal upheld their claims of direct sex discrimination, harassment related to sex, victimisation and unfair dismissal.

Whilst the ET understood that the agency wanted to proactively address the high gender pay gap, it found that the reason for Mr Bayfield’s and Mr Jenner’s dismissal was their sex, stating “We considered that this factor, their sex, was on the mind of [the company] when determining to dismiss them…” and “This would immediately assist the gender pay gap issue…, it would rid the team of two creative directors who were, because of their sex, seen as resistant to change; also, female creative directors were exactly what [the company] were seeking.”

The ET’s view was that a woman in a similar position would not have “faced the same backlash”; indeed, a senior female individual in a similar situation would have improved the gender pay gap figures and so would have effectively been protected from redundancy.

Comment

What this case shows is that discrimination is not only a potential issue for the minority or underrepresented members of the workforce. It also highlights that there is no quick and easy way to address a gender pay gap issue. Promoting, demoting, or demotivating one group of employees at the expense of others is not a lawful, or effective, way of achieving the even playing field that gender pay gap reporting is aiming for. This can only be achieved by fostering a genuinely positive and supportive workplace, where equal opportunities exist for all.

3. Taylor v Jaguar Land Rover

Following our reporting of this case in November 2020, last month the Equality and Human Rights Commission published a statement confirming that Jaguar Land Rover (“JLR”) had “signed a legal agreement… to improve its policies and practices in relation to equality and diversity.”

Under the terms of that agreement, JLR was required to develop an action plan to prevent future breaches of equality law, taking in to account the recommendations of the Employment Tribunal that heard Ms Taylor’s claim.

Many of the agreed actions relate to improved training and monitoring of diversity and inclusion (“D&I”) practices across the organisation, specifically requiring new staff to complete mandatory e-learning modules on D&I, as well as bullying and harassment, within three months of joining the company, with supplemental training to be provided to people managers and senior leaders.

In addition, JLR has committed to launching inclusion councils at its manufacturing sites; and publishing, both internally and externally, its newly developed diversity and inclusion strategy.

The action plan will be monitored by EHRC over the next 12 months; if JLR fails to meet the agreed timescales, EHRC can use its legal powers to enforce compliance.

Comment

JLR is not alone in signing a legal agreement with EHRC (with Sainsburys being another high profile employer who has signed a section 23 agreement under the Equality Act 2006). However, this case, and the ongoing consequences for JLR, is a reminder to all employers that it should continuously review its D&I strategy to ensure that it is actively promoting a culture of equality and inclusion, and that its day-to-day practices are adequate to support all employees in their working environment.

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If you would like advice or assistance in relation to any workforce issues, or indeed any of the topics mentioned in this newsletter, please get in touch with a member of our Employment Team.