December 1, 2021

This newsletter covers:

1. Menopause: why are workplaces failing women?

2. Fire and rehire: the saga continues

3. Supporting workers in the Covid-19 vaccination programme

4. The climate & ecological emergencies and the workplace

5. Adverse Weather Policy

1. Menopause: why are workplaces failing women?

Recent research demonstrates that as many as sixty percent of women are currently suffering or will suffer from disabling menopausal symptoms. This means workers at every level who are female or who identify as female are suffering from debilitating menopausal symptoms. Overlooking the consequences of menopause in the workplace can lead to:

  • an unhappy, underperforming workforce
  • high levels of sickness absence
  • loss of workers at every level leading to skewed figures on wage equality and unequal representation in the boardroom 
  • claims in the employment tribunal on the grounds of sex, disability, or age discrimination

Menopause is a complex and, for some, an embarrassing topic and workers often suffer in silence. A menopause policy including risk assessments and workplace training is required. But no one should make assumptions about menopause and particularly on the grounds of age because menopause is not just a condition of older workers, it can affect those aged between 45 to 55 and also those five years younger as the perimenopause sets in – a time when the body begins to transition. 12 million women in the UK are perimenopausal. Workplaces must open up the conversation because workers must feel able talk to colleagues, line managers, HR and their employers, they must have confidence that effective steps will be taken to accommodate this phase in their lives.

A recent employment appeal tribunal case – Rooney v Leicester City Council – establishes a precedent for a finding of disability discrimination in this area. Ms Rooney was employed by Leicester City Council for twelve years as a childcare social worker. She resigned and claimed sex discrimination and disability discrimination because she had suffered severe menopausal symptoms – physical, mental and psychological – over a period for two years but received no constructive help from her employer. She related embarrassing discussions with male managers and insensitive comments from her line manager such as he often felt hot in the office too, and she received a written warning for being off sick. Her symptoms included insomnia, fatigue, light headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines, hot flushes. She was under the care of her GP and a consultant at a specialist menopause clinic.

The employment tribunal dismissed the disability and sex discrimination claims and Ms Rooney appealed. The employment appeal tribunal held she was disabled. Under the Equality Act a person has a disability if they have a physical or mental impairment and this has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. “Long term” is defined as lasting for at least 12 months, or likely to last for at least 12 months, or for life.

The tribunal considered the cumulative effect of impairments. Ms Rooney reported her symptoms led to forgetting meetings and appointments, forgetting to put the handbrake on her car, leaving the house without locking the doors. Under the Equality Act Guidance, someone can suffer minor disabilities across a variety of day-to-day tasks, but taken together, the cumulative result can amount to a substantial adverse effect.

Almost one million women in the UK have left jobs as a result of menopausal symptoms – a statistic remarked on by the House of Commons Women and Equalities Committee which is currently enquiring into menopause and the workplace.

2. Fire and rehire: the saga continues

The practice of employers firing workers and rehiring them on worse terms, such as lower wages and reduced benefits continues. High profile cases abound for example British Gas, British Airways and Clarks. The famous shoe manufacturer in Street was bought out of family management earlier this year and the threat of fire and rehire has hung over workers’ heads ever since. They have picketed the gates since early October with the support of local councillors, firefighters and residents – the reputation of Clarks has apparently taken a nosedive. Acas is in touch with both sides in the hope that mediation or conciliation will resolve the dispute. 

What’s the answer to this controversial practice? Despite Prime Minister Boris Johnson saying it was “unacceptable”, an attempt in October to bring legislation before the House of Commons was talked out, much to the dismay of trades unions.

Acas has recently published guidelines at the Government’s request: Making changes to employment contracts – employer responsibilities. The Acas announcement heralding the guidelines makes clear the aim is to help employers avoid fire and rehire which it describes as an “extreme step” that runs multiple risks: the breakdown of workforce trust, industrial action, legal claims. Drastic decisions such as these should only be made after all other avenues have been explored and after consultation with the workforce or trades union as appropriate. The risks are evident, reputational damage as evidenced by Clarkes and multiple claims in the employment tribunal for unfair dismissal, constructive dismissal, and discrimination.

3. Supporting workers in the Covid-19 vaccination programme

The Health Secretary Sajid Javid recently said we must remain cautious, not complacent in any way and that he hoped people can look forward to Christmas together.

How can employers support workers in the Covid-19 vaccination programme? The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce workplace risks, a justification for employers to encourage their workers to protect themselves and others in the workplace. COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) – another justification for employers.

Acas has recently published guidance on Getting the coronavirus (COVID-19) vaccine for work. Employers are advised to support staff when the vaccine is offered to them, to talk with them and share the benefits of vaccination. Acas suggests employers pay workers for the time they take off to have the vaccine, and their usual wages as opposed to sick pay for any vaccine related illness.

Some workers have to be vaccinated in order to do their job, those

  • required to in their employment contracts and
  • since 11 November 2021, those who work or volunteer in care homes in England (unless they are exempt)

Acas recommends solutions where these workers remain unvaccinated: offers of suitable alternative work, leave if the worker is still awaiting their vaccination. If all fails, dismissal may be an option if preceded by a full and fair disciplinary procedure – but employers should seek legal advice beforehand.

The CIPD reminds employers in their COVID-19 vaccination: guide for employers that vaccination is just one measure of protection. The full package includes:

  • coronavirus risk management assessments
  • home working
  • workplace measure such as ventilation, handwashing, social distancing and the use of PPE

4. The climate & ecological emergencies and the workplace

When the International Panel on Climate Change published its sixth report in August, the UN Secretary General, Antonio Gutierrez, described it as a “code red for humanity”. The Office for National Statistics reported this month that three quarters of adults now worry about climate change, citing anxiety, a sense of helplessness, and concern for family and future generations, and on 25 November Ipsos MORI announced results of a poll which showed climate change is the number one issue of concern amongst the British public.

In the case of Grainger v Nicholson 2010 the belief in manmade climate change and the need to cut carbon emissions to avoid catastrophic climate change was recognised as a philosophical belief capable of protection. This finding could lead to workers claiming discrimination under the Equality Act if, as in Mr Nicholson’s case, they consider they have been singled out for less favourable treatment or dismissal or redundancy because of their concern about climate change. Mr Nicholson said, “I no longer travel by airplane … I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale.”

How does this affect the workplace? Positive actions in the face of climate change are not only good for the planet but for reducing business overheads and enhancing reputation and staff morale, and the pandemic has produced the perfect template for doing things differently. A climate policy – perhaps arrived at with the input of a committee of workers – could include:

  • cutting back on journeys by car and plane
  • using online tools for meetings and conferences
  • sourcing ethical alternatives for banking and financial activities
  • switching to suppliers of renewable energy

The future holds the risk of increasingly frequent severe weather events. The Health and Safety Executive gives advice in Is it too hot to work? Temperature in the workplace. Employers must keep workplace temperatures at a comfortable level and provide clean and fresh air. Such steps will prevent workers suffering harm and pursuing personal injury claims.

What if floods prevent workers travelling to work or they have to stay at home because their children’s schools are closed? Workplace policies or employment contracts can provide clarity for workers in these circumstances, such as:

  • the availability of annual holiday or unpaid leave, or
  • provisions to make up the lost time or to work from home

What if the workplace is flooded? Every business needs a disaster recovery plan. Will workers be able to work at another location or at home? If neither is possible then there is a contractual duty to pay them.

But there is also an ecological emergency. A United Nations report of 2019 found that one million species worldwide are threatened with extinction, and a World Wildlife Fund report found that the UK is one of the most nature depleted countries on the planet. Businesses must of course comply with environment legislation but they can also:

  • Cut down on use of plastics and ensure they are recycled
  • Cut down on paper use and go digital
  • Support local environmental initiatives
  • Establish workers’ representative bodies on the model of those in France to scrutinise the environmental impact of the business’s projects.

5 Adverse Weather Policy

An adverse weather policy is a written document that outlines the rules, expectations, and operating procedures when bad weather causes disruption. By eliminating ambiguity, you can avoid confusion about whether an employee should report to work and how the organisation handles employee pay and benefits during any incidents.

Contact us for free advice on the issues raised in this Newsletter on 07375 097443 or e-mail us on enquires@lbjconsultants.co.uk. In this thirty-minute session we will review your situation and how you can achieve your objectives.

The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.

Ask Us Anything About HR, Employment Law or Health & Safety

Get FREE access to our factsheet library