Despite menopause being a natural part of the ageing process, there is a general lack of awareness of its symptoms and effects, often resulting in menopausal women* experiencing a lack of support, as well as discrimination and harassment. This blog looks at the legal issues, and what employers can and ought to be doing to create a supportive and empathetic workplace culture.

Some of these issues were highlighted in a recent Employment Appeal Tribunal (EAT) decision, Rooney v. Leicester City Council, which was handed down shortly ahead of World Menopause Day on 18 October 2021. This case acts as a timely reminder of the challenges that menopausal women face in the workplace and the fact that more can be done to raise and demonstrate understanding and awareness of what remains a taboo subject.

Mrs Rooney was a childcare social worker for Leicester City Council until she resigned from her post. She brought a number of claims against her employer, including a claim for disability discrimination, relying on menopause as her disability. She cited symptoms including insomnia, fatigue, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, joint pain, migraines and hot flushes that left her physically and mentally unable to cope over a couple of years, and having to spend prolonged periods in bed. She received hormone replacement therapy and was under the care of a specialist menopause clinic.
Continue Reading Menopause in the workplace

The UK government’s long awaited response to its 2018 consultation on sexual harassment in the workplace has now been published. In this update, we look at the findings made and what may be coming down the line for employers as a result.

  1. Introduction

The 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace revealed clearly that it was a persistent and important issue, despite the existence of current legal protections. As a result, the government committed to consult on the issue and have produced an official response to the 2018 report.

The government undertook a consultation from 11 July to 2 October 2019, on sexual harassment in the workplace. This consultation took a two-part form, consisting of: 1) a technical consultation with employers on the functionality of the legal framework designed to prevent sexual harassment, and 2) a public questionnaire aimed at gathering insight into the experiences of individuals.

The consultation was designed to explore:

  1. The evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimization in the workplace
  2. How best to strengthen and clarify the laws in relation to third-party harassment
  3. Whether interns are adequately protected by the Equality Act 2010 (the Act) and the evidence for extending the protections of the Act to volunteers
  4. The views of stakeholders on extending employment tribunal time limits in the Act from 3 months.


Continue Reading Overview of the governments’ ‘Consultation on sexual harassment in the workplace: government response’

With the lifting of COVID-19 legal restrictions in England on 19 July 2021, David Ashmore (Partner) and Alison Heaton (Knowledge Management Lawyer) from the Reed Smith employment team comment on the key issues/hot topics for employers.

What is changing on 19 July for employers?

The instruction to work from home if you can is being lifted from 19 July 2021. From this date it will be up to employers to decide whether employees should return to working in line with pre-COVID arrangements, retain the current work-from-home set-up, or move towards hybrid working.

Can an employer impose new arrangements from 19 July?

Although employers could require a return to a contractual place of work from 19 July, mandating an immediate change to current work-from-home arrangements is not recommended – not only does it run contrary to the government’s advice to implement any return to the workplace gradually, but is unlikely to be well-received by employees. Instead, employers are advised to prepare for a transition to new/previous arrangements over a period of weeks and months. Having a clear, robust and well-communicated health and safety and return-to-work plans, and adopting a flexible approach wherever possible, will allow for an easier adjustment. Where the employer wants to make changes to contractual arrangements, they will need the employee’s consent.

What if an employee does not want to return to the workplace – is that redundancy?

No. Where the employee is not willing to return to work, and alternative arrangements cannot be agreed, this will not be a redundancy situation (as redundancy only arises if the business closes, there is a closure of the workplace, or where there is a reduced need for employees).

How should employers deal with return-to-office anxiety?

Numerous circumstances may make some individuals reluctant to return to the workplace or previous working arrangements, certainly in the near term. Employers are encouraged to have an open dialogue with staff, taking time to understand each individual’s unique challenges and preferences, and to provide a supportive and flexible approach to find a mutually agreeable solution. They will need to be particularly vigilant in circumstances where the reluctance to return is linked to concerns about health and safety, and act reasonably when responding to concerns. Where it is not being offered, employers can perhaps expect to see a surge in flexible-working requests, and will need to treat these with care – where employees have successfully worked from home and/or flexibly during the pandemic, it may be harder to justify rejecting requests seeking to make that a more permanent arrangement.  
Continue Reading Preparing for a return to the workplace in the UK after 19 July 2021

COVID-19 has thrown up numerous and multi-varied concerns for employers and employees alike. One notable area of consideration and concern has been the delicate and difficult issue of dismissals related to health and safety reasons. A recent case has shed more light on how Tribunals may deal with the pandemic-related workplace issue of employees’ refusal to work on health and safety grounds, due to fear of COVID-19.

Rodgers v Leeds Laser Cutting Limited ET/1803829/2020

Case Facts

This case considered the availability and legitimacy of fears over exposure to/contracting COVID-19 at work acting as grounds for statutory protection against unfair dismissal.

The Claimant refused to come into work after another colleague began to show symptoms of COVID‑19, and self-isolated. He informed the Respondent that he would not return to work until lockdown eased, as he was concerned for his very young child, who has sickle cell disease. After a month of refusing to attend work, the Respondent was dismissed.

The Claimant did not have sufficient service to claim ordinary unfair dismissal, so instead claimed that he had been automatically unfairly dismissed for exercising his rights to leave the workplace and take steps to protect himself where he reasonably believed there was a serious and imminent danger, under sections 100(1)(d) and (e) of the Employment Rights Act 1996.
Continue Reading COVID-19, health and safety and dismissal

In the long-running case of Asda Stores v Brierley and others, the Supreme Court ruled that, for the purposes of an equal pay claim, a group of female retail store employees could rely upon the work of mainly male depot distribution employees for comparison even though they are located at different sites.

Generally speaking, an equal pay claim can only progress if the claimant can establish a disparity between their contractual terms and those of an appropriate comparator of the opposite sex performing equal work at either:

  • the same establishment; or
  • a different establishment where “common terms” apply either generally or between the individual and their comparator.


Continue Reading Equal pay: Comparators in different establishments

The start of April sees a number of important changes that employers in the UK need to be aware of:

1st April 2021 – Increases to National Minimum Wage (employers should note the change to the age categories):

  • Age over 23: £8.91 (from £8.72 for over 25 year olds)
  • Age 21-22: £8.36 (from £8.20 for 21-24 year olds)
  • Age 18-20: £6.56 (from £6.45)
  • Age 16-17: £4.55 (from £4.62)
  • Apprentices: £4.30 (from £4.15)

4th April 2021 – Statutory rate increases:

  • Statutory sick pay: £96.35 per week (up from £95.85)
  • Statutory maternity, paternity, adoption, shared parental, and parental bereavement pay: £151.97 per week (up from £151.20)


Continue Reading Important upcoming changes that UK employers need to be aware of

With 6 April 2021 quickly approaching, the IR35 reforms are now back on the agenda and fast becoming a priority. Affected businesses need to have their implementation process in place before the IR35 reforms take effect.

IR35 is designed to ensure that appropriate income tax and national insurance contributions (NICs) are paid by contractors who provide their services through an intermediary company. In a nutshell, the IR35 rules bite where, but for that intermediary company, the individual contractor would be deemed an employee of the client. The IR35 reforms are important as they require medium and large businesses to carry out status determinations to assess whether IR35 applies. Where they conclude that IR35 applies (i.e. that there is deemed employment), the IR35 reforms shift responsibility to the client for making tax and NICs deductions through PAYE.

Continue Reading IR35 changes – Are you ready?

2021 marks the start of a new era for the UK, the Brexit transition period having ended at 11pm on 31 December 2020. After endless rounds of negotiation, the parties reached a last-minute agreement over the ongoing relationship between the UK and EU, and the European Union (Future Relationship) Act 2020 (which gives legal effect in the UK to the agreements reached) received royal assent on 30 December 2020. But what impact does this have on UK employment rights derived from the EU?

The short answer is that while Brexit provides the UK with some freedom to deviate from EU derived employment law, we should not expect to see any radical changes to UK employment laws or employment rights.

The Trade and Cooperation Agreement reached between the UK and EU incorporates level playing field commitments that seek to prevent either the UK or the EU gaining a competitive advantage in a variety of contexts. These include rights at work, namely fair working conditions, employment standards (including in respect of workplace health and safety), information and consultation rights and the restructuring of undertakings. The commitments given by both the UK and EU are intended to ensure that neither will weaken or reduce labour or social rights and standards below the levels in place at the end of the transition period where this affects trade or investment between the UK and EU, including by way of a failure to enforce those laws and standards.
Continue Reading Implications of Brexit for UK employment law

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law. A PDF version of this newsletter can be accessed here.

This issue will provide recent case law updates, law reform and legislative developments, COVID-19 updates and any other news over recent weeks.

Case law updates

Collective redundancy consultation: The European Court of Justice (ECJ) has ruled on the reference period and threshold numbers required for the Collective Redundancies Directive, and has concluded that where the threshold number of dismissals is met at any point across the relevant reference period, then dismissals occurring both before and after that point are subject to collective consultation rules. This raises questions as to whether section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which applies the Directive in the UK (and which excludes the need to count employees whose proposed dismissal consultation has started) is compatible with the Directive. In the absence of amendments to TULRCA to clarify the situation, employers planning redundancies will need to have this case in mind, with an understanding of past redundancies as well as anticipated ones, when assessing whether the relevant thresholds for collective consultation are met. [UQ v. Marclean Technologies – NB: no English transcript is currently available]

Discrimination: The Court of Appeal has upheld the ‘cost plus’ basis for seeking to justify indirect discrimination, i.e., cost savings alone cannot be a legitimate aim and will rarely succeed as a defence, although it may be a factor where there is ‘something else’ (including where an employer is subject to financial constraints and is required to reduce its costs). Although not changing established principles, this case acts as a reminder that cost in itself should not be relied upon to rationalise potentially discriminatory practices. Incidentally the court also said that the phrase ‘cost plus’ should be avoided as inelegant. [Heskett v. Secretary of State for Justice]

Health and safety detriments: Following a judicial review, the High Court has held that the UK failed to properly implement the EU Health and Safety Framework Directive in the Employment Rights Act 1996 when only providing protection against detriment on health and safety grounds to employees and not also to workers. The Independent Workers’ Union of Great Britain, which initiated the proceedings, is calling for the government to urgently amend UK legislation to reflect this decision, which would significantly expand the scope of protection at a time when health and safety is particularly pertinent. [HC: IWUGB v. DWP]

Settlement agreement – COT3: Where arguments are being made to set aside a COT3 settlement due to misrepresentation, it is permissible for the tribunal to consider without prejudice communications. [Cole v. Elders Voice]

Summary termination: A firm was entitled to rely on a self-employed stockbroker’s repudiatory breach of contract to summarily terminate their relationship, notwithstanding the firm also having committed a repudiatory breach. [HC: Palmeri v. Charles Stanley & Co]

Tribunal hearings: An appeal against a decision to hold a merits hearing in person rather than remotely during the pandemic has been dismissed, reiterating the strong case management discretion held by judges. [Omooba v. Michael Garrett Associates]

Tribunal procedure – applications to amend pleadings: The Employment Appeals Tribunal has provided detailed guidance on the procedure to be followed when considering applications to amend, including how arguments in support of such an application should be approached, the matters to consider before such an application is made, and the importance of showing the consequences of the amendment being refused. This also reminds us that the tribunal has wide case management powers, and the appellant courts will seldom interfere. [Vaughan v. Modality Partnership]

Whistleblowing: The Court of Appeal has upheld the principle that multiple separate communications taken together could amount to a protected disclosure even if none of them, taken separately, would do so. Whether it is appropriate to take this approach is a matter of common sense and fact dependent, and it is not necessarily an error for the tribunal to fail to consider the composite approach. In the present case, the claimant failed to clarify which of his 37 communications should be grouped together, and the specific protected disclosure which arose from that combination. [Simpson v. Cantor Fitzgerald Europe]

Continue Reading UK Employment Law update – December 2020