Additional Redundancy Rights for Pregnant Staff

The Protection from Redundancy (pregnancy & family leave) Act 2023 extends redundancy protection rights that apply during maternity leave to pregnant employees.

What as the employer do you need to know?

As the law currently stands where an employee is selected for redundancy at any point during maternity leave they must be offered any suitable alternative vacancy which exists before colleagues who have been selected for redundancy. The employee who is on maternity leave does not have to apply to be interviewed for a suitable alternative vacancy and neither do they have to be the best fit for the job role – in other words, the employer is obliged to give them preferential treatment. The same applies where the employee has returned to work early at any point during their maternity leave.

What are the Changes to the Protection from Redundancy (Pregnancy & Family Leave) Act 2023?

However, in May 2023 the Protection from Redundancy (pregnancy & family leave) Act 2023 received Royal Assent which makes several changes and grants certain employees additional employment rights.

Firstly, it extended existing redundancy protection rights so that they apply from the point the employee informs the employer – verbally or in writing – that they are pregnant. The redundancy protection ends 18 months after the child’s birth.

The Act also extends the same rights to employees who take adoption leave or shared parental leave.

Failure to follow this law is likely to result in the redundancy being treated as an automatically unfair dismissal.

The Act comes into effect in 2024 and most likely not before April but it is prudent to have this in mind. As soon as the Act becomes Law we will let our clients know.

If you need any further information on this topic please do not hesitate to contact us on 01924 441032

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Learn more on Parental Leave:

Read our blog: 'Working Parents – School Holiday Juggling & Accrued untaken Holiday leave – what a dilemma'

Read other relevant news and articles

by Heather Jones

How to Deal with a Disgruntled Ex-Employee

As a business owner, you want all employees to leave your company on good terms. However, this isn't always the case, and negative emotions can take over when workers lose their jobs, if they are made redundant or dismissed for misconduct.

These emotions can manifest as anger, causing ex-employees to lash out at their former employer through unacceptable behaviour such as, online reviews, or threats.

Angry ex-employees can negatively impact your workplace productivity and business reputation, but what can you do?

Employers may encounter disgruntled ex-employees at some point in their careers, typically after dismissing a staff member due to poor performance or an incident.

There are various reasons why an employer may need to dismiss an employee, which includes: Gross Misconduct Low Productivity Capability Bullying Harassment Statutory Restrictions, Some Other Substantial Reason. It is important to ensure that the reason does not constitute unfair dismissal to avoid facing an employment tribunal.

Though an employee leaving may seem like the best step for a business, it can lead to problems if not handled correctly disgruntled employees, both current and former, can cause disruptions that negatively impact business productivity, and in severe cases, may require legal action.

When an employee is terminated, they may feel upset or resentful, leading them to lash out and harm a company's reputation. In some cases, this may even result in false claims of misconduct, which can be legally classified as defamation.

What Is Defamation? – this falls into two areas:

Libel: This refers to written or recorded statements that have a sense of permanence, such as blog posts, articles, social media posts, videos or audio recordings AND

Slander: This refers to spoken forms of defamation.

For a business to file a defamation lawsuit, they must follow the guidelines outlined in the Defamation Act of 2013. This requires the business to prove that the defamatory statement has caused serious harm to the reputation of the business and may result in a significant financial loss.

You may not want to take this route but still want them to stop – so what can now?

Dealing With Disgruntled Ex-Employees:

Tips to Protect Your Business - Be aware of the potential harm that ex-employees may cause to your business. They could: Post negative reviews or comments online. Harass current employees or management. Contact clients or customers. Make accusations or spread rumours. Discourage future employees from joining your team. To mitigate the risk of damage to your business, it's crucial to handle the situation with care.

Plan Your Offboarding Process for a ‘good leaver’

A well-planned offboarding process is key to ensuring that employees leave on a positive note. Having a clear plan in place ensures consistency and that all necessary procedures are followed. This can help to avoid misunderstandings and hard feelings, leaving the ex-employee with a good impression of your business

Conduct Exit Interviews

Exit interviews are an excellent opportunity for employees to voice their concerns before leaving the company. As an employer, it's a chance to identify areas of improvement and address any issues that could have led to the employee's departure. By listening to feedback and making changes where necessary, you can help to prevent future issues

Consider Preventative Legal Action

Consider Preventative Legal Action by adding privacy agreements, non-disclosure and non-compete agreements to employment contracts can help to safeguard your business's confidential information.

These agreements can prevent former employees from contacting clients, sharing confidential information, discussing finances, taking a job with a competitor, or making defamatory comments about your business.

When dealing with situations involving former employees who harbour discontent, believing their termination was unjust or their compensation upon dismissal was inadequate, there are proactive measures that can be employed to mitigate potential legal and reputational risks. Here are effective strategies to enhance the handling of such situations

Respect Confidentiality

It's important to acknowledge that ex-employees might experience emotions like anger or embarrassment after their termination. To address this, adopt a tactful approach that maintains the privacy of the details surrounding their departure. This not only prevents unnecessary discomfort but also helps uphold their favourable perception of your company, thereby minimising the possibility of negative online reviews emerging

Open Direct Communication

Rather than dismissing negative feedback or reviews outright, consider initiating direct communication with the former employee. This showcases your company's dedication to its workforce and offers a platform for them to express their concerns. Engaging in a constructive dialogue can foster improved relations and potentially provide practical assistance, such as guiding them towards resources for emotional support or job opportunities.

Thorough Documentation

Keeping comprehensive records throughout the termination process is crucial. These records can serve as vital evidence if the situation escalates into a legal dispute. Ensure that your HR team diligently documents factors related to performance, attendance, grievances, and conflicts. If necessary, involve the employee's immediate supervisor in this documentation process.

Monitoring Online Reputation

Given the impact of online reviews on a business's reputation, it's vital to stay vigilant. Regularly monitor online review platforms for any negative feedback originating from former employees. Respond promptly and professionally to address their concerns, potentially defusing the situation before it gains momentum. Responding calmly helps prevent the escalation of emotions that might lead to more significant issues

Should Employers Deal with Grievances Raised by Ex-Employees

There are no hard and fast rules on this, but it is often assumed that employers do not have legal duty to investigate grievances raised by ex-employees. However, what employers should bear in mind is that a grievance is a dispute, and a dispute has the potential to turn into a tribunal claim. If an ex-employee raises a grievance after they have left or an employee resigns with immediate effect citing various grievances as their reason for leaving, it is good practice to try and get to the bottom of the dispute with a view to trying to resolve it. Otherwise, this may be a missed opportunity to avoid a claim, or it may affect your ability to defend a claim at a later stage.

If this happens seek expert advice and guidance.

by Heather Jones

Do you need an AI policy?

Should you consider implementing a policy on the use of generative AI?

Samsung has temporarily restricted the use of generative AI tools through company computers after it discovered that some employees had misused the technology by uploading sensitive code to ChatGPT. Should you consider implementing a policy on the use of generative AI?

Generative AI, such as ChatGPT, has great potential for business use in terms of enhancing employee productivity and efficiency but it’s also not without its legal risks, particularly relating to data protection, the protection of confidential information and copyright infringement.

How far can you go with AI?

Samsung has banned the use of generative AI on company computers, it has also warned staff to take precautions when using the technology outside of work and advised them not to input any personal or company related information into the services.

All workplaces are different, and some will have no use for the AI technology being developed but some will. Your employees may already be experimenting with using generative AI tools without your knowledge or permission, particularly if they’re in creative, software development or other content creation type roles.

If this is the case, you might want to consider controlling the extent to which staff can use generative AI for work-related purposes. Whilst the simplest policy would be a total ban on the use of generative AI (even if that’s only until you can better understand the risks and therefore formulate a better-informed policy), you might alternatively want to allow staff to use the technology to create content in a controlled way. In this situation you should ask yourself the below questions:

Questions to ask yourself when implementing an AI policy:

which technology are you going to allow?
will the generative AI outputs be used only within your business or externally too?
what will be the technology’s permitted/acceptable use cases and what will be its prohibited use cases?
are employees going to be warned not to share any confidential business information or personal data with the technology?
will employees be required to carefully check the outputs for truthfulness, accuracy, and bias?
will employees be required to amend the outputs to both suit the specific context and minimise the risk of copyright infringement?

You know whether this technology is something your company has or may wish to use – if you would like us to draft you a policy and guide you on how to implement and monitor such activities please give us a ring.

by Heather Jones

When might an employer consider redundancies?

When might an employer consider redundancies? Redundancies most often arise in response to a need to reduce costs or as a result of a downturn in work (such as loss of a key customer contract). However, neither of these are a requirement for there to be a redundancy situation under the legal definition.

A redundancy situation can also include:

The whole business, or a particular site closing down

A scenario where the employer has a reduced requirement for people to do a particular type of work

This is a wide definition and incorporates situations where an employer believes that the existing work can be done by fewer people or proposes that the organisation can be restructured by replacing existing roles with new ones so that things work more efficiently.

Employment Tribunals are not usually keen to scrutinise business decisions and judge whether they appear to be commercially reasonable. It is generally accepted that employers are entitled to decide how best to run their business, even where an employee disagrees. Employment Tribunals may however be willing to start questioning a business case where there appear to be inconsistencies or irrationalities, these may give weight to a claim from an employee that they are being personally targeted.

Where an employer is proposing to make 20 or more redundancies at an establishment within any 90-day period, special ‘collective consultation’ rules apply. These impose prescriptive requirements on the employer as to the process and timescales for any redundancies, and failure to comply carries significant penalties including a protective award of up to 90 days’ uncapped pay for each affected

Advice should always be taken on any potential collective redundancies.

So, what are common steps taken when an employer considers redundancies?

The redundancy ‘pool’

Once you have identified the area where staffing reductions can be made, the next step is to decide the redundancy ‘pool’.

In broad terms, the ‘pool’ is the group of employees who do the work for which there is a diminished requirement. In many cases, the pool will be obvious – there may be a group of employees with the same job title who work interchangeably carrying out the same duties.

In other cases, it will be much trickier:

There may be various employees who perform similar duties but with different job titles
A team of employees who carry out the same role, but are focused on specific clients/customers (the redundancy situation may be arising from one of those clients having taken their business elsewhere)

Can the employer limit the pool to a narrow group of employees or even just a single employee?

There are no hard and fast rules about how you must define the redundancy pool. The test which the Tribunal is required to apply is whether the pool falls within the ‘range of reasonable responses’ i.e., might a reasonable employer have chosen this pool, not, is it the pool that the Tribunal thinks best.

However, in practice Tribunals can be strict when scrutinising whether the employer has taken a reasonable approach to the redundancy pool. Employers often favour narrow pools as they may think that this will ensure that the most appropriate person is selected from a business perspective.

Important to note: It can be an easy decision for a Tribunal to find that a reasonable approach would have been to use a wider redundancy pool.

The Employment Tribunal will often point out that a robust and reasonable selection matrix would ensure that the ‘right’ person was chosen in a fair manner.

It is possible to have a ‘pool of one’ – most commonly where there is a ‘stand-alone’ role (i.e., only carried out by one person) – but again Tribunals are particularly keen to scrutinise whether it is reasonable to define the pool so narrowly.

So, it is important to consider these matters when selecting your ‘pool’ of At Risk employees.

The selection process

Once the pool has been identified, the employer will often only need to select some of the employees in the pool for redundancy. This will not always be the case – for example, if it is a ‘pool of one’, or if all of the roles within the pool are proposed to be deleted. In those cases, everybody in the redundancy pool is automatically at risk of redundancy.

However, in many cases an employer will only be seeking a reduction in headcount. For example, if an employer is only seeking one redundancy from a pool of 5 employees, it will need a fair method of identifying which employee is chosen.

Employers’ hands are tied fairly tightly when it comes to how they go about making this selection. Case law is fairly clear that employers are expected to use a selection matrix against which each employee in the pool is scored – as opposed to making everybody in the pool re-interview for their job.

Tribunals expect to see a matrix based on largely objective criteria – meaning those which can be verified against known data such as:

Disciplinary record
Attendance record
Length of service

Whilst there is no blanket ban on subjective criteria (which rely on individual judgment), employers are on much safer ground where they can provide clear guidance on how employees are scored and can provide evidence. For example, a performance criterion which can be supported by annual performance ratings and regular one-to-one appraisals is unlikely to be criticised.

Important to note: A seemingly arbitrary rating out of 5 for ‘attitude’ or ‘enthusiasm’ is unlikely to sit well with a Tribunal.

Making the announcement

The reality is that there isn’t ever a good time to tell employees that they may be facing redundancy. Some employers favour group announcements, where multiple roles are affected; others would rather take a more personal approach and speak to people individually – however, this can create something of a ‘race against the clock’ to speak to everybody before they hear whispers elsewhere.

Either way, employers will want to time the announcement to minimise disruption to the business, whilst being as compassionate as possible towards those who are impacted. Businesses will also need to identify colleagues who aren’t personally impacted but will need to be aware of what is happening – and think about how they can assure staff who are not ‘at risk’ that they won’t be affected.

A golden rule is that the initial announcement is not the time for detailed discussion or heated debate about the potential redundancies – be prepared to tell employees that the consultation meeting is the forum to get into the detail.

The consultation process

The cornerstone of a fair redundancy process is consultation.

The fundamental purpose of this process is to provide employees with an opportunity to challenge the redundancy proposal and/or their selection. They should also be given the opportunity to put forward alternative suggestions.

Consultation should cover every aspect of the redundancy process:

The business reasons
The redundancy pool
The selection matrix
The individual scores awarded to the employee.

What does a reasonable consultation process look like? There is no ‘one size fits all’ approach, and each case will differ.

In some cases, the redundancy situation will seem very difficult to avoid, there may be no need for selection criteria and the employees may accept the situation without any meaningful challenge. In other situations, an employee may challenge every aspect of the process and several consultation meetings may be required to hear, consider and respond to challenges and counterproposals.

The key factors which an Employment Tribunal will expect to see in a reasonable consultation process are:

An ‘open mind’ and a willingness to revisit the proposal and/or the provisional selection of the employee for redundancy
The employer is providing reasonable information where requested and allowing adequate time for the employee to put forward questions and proposals
Genuine consideration of challenges and alternative proposals, with reasons provided where these are not considered to be feasible.

Alternative employment

Whilst employers should avoid the trap of treating the redundancy as a ‘done deal’ and jumping straight to this point, exploring whether there are any roles which the employee could do as an alternative to being made redundant is nevertheless an important part of the consultation process. Alternative roles may be pre-existing vacancies, or new roles created as part of the same restructure which has given rise to the redundancy situation.

Employers are generally expected to give employees at risk of redundancy some form of preferential treatment for vacancies within the business, and not necessarily made to compete for roles alongside external candidates, unless there is a good justification for this.

The good news for employers is that they have far more flexibility on how to fill vacancies, compared to how they should select employees for redundancy. Competitive interview processes are generally fine for this purpose, although an employer should still be careful to be consistent and provide justification for their decision.

Whilst enhanced protection in redundancy scenarios for employees who are pregnant or on maternity leave has been in the pipeline for many years, at present the only specific protection (beyond general pregnancy and maternity discrimination legislation) relates to alternative employment.

Where an employee on maternity leave is to be made redundant and there is a suitable alternative vacancy, that employee must be offered that role without a competitive process – even where there are other ‘at risk’ employees who may be able to do that vacancy. This is a rare example of positive discrimination not only being permitted but required.

Employees who are absent from the business

One of the trickiest issues for an employer to deal with is how to approach the process where an employee has been away from work for some time, for example due to long-term sickness absence or maternity leave.

A common pitfall for employers is not properly consulting with these employees – this is after all the ‘easy’ or ‘kind’ approach to take in many minds. However, not providing these employees with an equal opportunity to challenge their potential redundancy as other colleagues not only gives rise to a risk of unfair dismissal claims, but also of disability or maternity discrimination claims.

Some key tips for employers:

Ensure that you consult with these employees in an equally meaningful way.
This may require particular thought around practical issues such as delivering the initial announcement and arrangements for consultation meetings.
Be prepared for meaningful consultation to take slightly longer to allow for practical arrangements for meetings e.g., for alternative childcare arrangements to be made for young mothers.
Adjustments to scores will need to be considered where an employee has absence or other issues which are related to long-term health conditions which could be a disability under the Equality Act 2010.
Pregnancy-related absences must be discounted entirely when scoring.
Alterations may be required to the scoring process to allow for a period of maternity leave. If there is a criterion relating to sales made in the last 9 months and the employee has been on maternity leave for that entire period, awarding a score of 0 will almost certainly be unfair and discriminatory. However, automatically awarding a score of full marks may be unfair and even potentially indirectly discriminatory towards other employees. A sensible and balanced approach should be taken such as using the 9-month period prior to maternity leave or using the equivalent 9-month period in the previous calendar year (assuming that this wasn’t impacted by maternity leave).

How can we help?

We can guide you through this minefield and even undertake it from start to finish on your behalf.
Do not attempt this process without expert advice.
Claims relating to redundancy dismissals can be expensive and any employer who thinks they may have to make redundancies in future should consider whether insurance would be worth having. As with most insurance policies, claims arising from pre-existing situations will not be covered and most policies will need to have been in place for a minimum of 6-12 months prior to any redundancies in order to be covered AND if you do not follow the process ‘to the letter’ any insurance policy will not support you. This is why if you are considering redundancies you let us steer you through the minefield safely.

If you have any questions relating to anything discussed in the article or if you would like advice on any other matter please do get in touch us.

by Heather Jones

Carers Leave

The Carer’s Leave Bill has received Royal Assent to become the Carer’s Leave Act 2023. What will this legislation mean and when can we expect the new law to be implemented?

The new Carer’s Leave Act 2023 amends or inserts new provisions into the Employment Rights Act 1996, providing powers to make regulations to create an entitlement for employees to take one week’s unpaid leave from work in any twelve-month period in order to provide or arrange care for a dependant with a long-term care need. This will be a day one right.

Who is a dependant?

A person is a “dependant” if they are a spouse, civil partner, child, or parent of the employee, or live in the same household as the employee (otherwise than by reason of being their boarder, employee, lodger, or tenant), or reasonably rely on the employee to provide or arrange care.

A dependant has a “long-term care need” if they have an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months, or they have a disability for the purposes of the Equality Act 2010, or they require care for a reason connected with their old age.

What are the regulations?

The regulations will also set out how carer’s leave may be taken, but the aim is that it can be taken flexibly to suit the employee’s caring responsibilities and so will be available to take in increments of half-days or individual days, up to a week. The regulations will additionally set the rules around what notice must be given by an employee to request to take carer’s leave and when the employer has the right to postpone a requested period of carer’s leave. Employees won’t, however, be required to provide evidence in relation to a request for carer’s leave.

Employees taking carer’s leave will have detriment and automatic unfair dismissal protections.

Although a date for implementation hasn’t yet been set, these provisions are unlikely to come into force before April 2024 and the government has said that it will lay the relevant regulations in due course.

As soon as it becomes law we will let our client know and update the statutory handbook.

As usual any questions or concerns please do not hesitate to contact us on 01924 441032.

by Heather Jones

Heatwaves: Common questions employers are asked

Let us start with the facts and some answers to commonly asked questions:

Whilst there are legal restrictions around making people go to work in certain extreme weather conditions, there is no maximum temperature set out by the law to dictate when it is too hot to work.

This is because every workplace is different. No meaningful upper limit can be imposed because in many indoor workplaces high temperatures are not seasonal but created by work activity, for example in bakeries or foundries.

However, whilst there is no legal maximum or minimum working temperature, all workers are entitled to an environment where risks to their health and safety are properly controlled. Heat is classed as a ‘hazard’ and comes with legal obligations as any other would.

The Government states that, during working hours, the temperature of all indoor working spaces must be ‘reasonable’. Employers must also stick to health and safety at work, including: keeping the temperature at a comfortable level expected for the role, and providing clean and fresh air.

Common Questions your staff may ask during heatwaves:

Can a worker leave their workplace if it becomes too hot?

Not unless they feel unwell, and then they need to take sick leave. The Workplace (Health, Safety and Welfare) Regulations 1992 places a legal obligation on employers to provide a “reasonable” working temperature in the office. As the employer, you do have a duty to determine what reasonable comfort will be in particular circumstances.

Are there any other regulations that protect workers during hot weather?

In addition, the Management of Health and Safety at Work Regulations 1999 requires employers to make a suitable assessment of the risks to the health and safety of their employees. The temperature of the workplace is one of the potential hazards that needs an assessment.

Do you have to legally provide air conditioning in the office?

No, you do not. Where working temperatures are uncomfortable, employers should consider:

Using fans (or air conditioning, if available).
Providing cool water in the workplace and encouraging workers to drink it to prevent dehydration.
Modifying the dress code requirements, if appropriate.

Is it acceptable for workers to wear shorts and flip-flops in the office during warm weather? What can you do if this happens, and a worker defies their employer?

If appropriate, and in line with your PPE requirements, you can make temporary changes to your dress code policy to allow for the warmer weather. However, you can still insist on certain standards of appearance – particularly for customer-facing roles and for shoes and clothing to be sensible for health and safety reasons.

Are there any other regulations that protect workers during hot weather?

Whilst there are no legal requirements for employers to make additional allowances to those listed above, it is advisable that you are considerate of your employees during times of extreme heat. Some small but helpful changes can go a long way with building the goodwill of your workforce, and in turn it is likely to help the business – after all, if people are too hot, they are unlikely to be at their most productive!

by Heather Jones

Photocard Driving Licence Renewal Reminders

The DVLA is reminding drivers that they are legally required to renew a Photocard Driving License every ten years.

A letter is sent to an individual’s home address. If any of your employees drive for you then you need to make sure that you obtain a copy.

Photocard Driving Licenses are only valid for 10 years from the date of issue not the start of the year they are issued.

Failure for drivers who do not renew them risk a personal fine of £1,000 and the possibility of the vehicle they are driving being seized. This is something you do not want to risk.

The submission has to be applied for before the current one expires. The holders can continue to drive while it is being processed but individuals have to apply themselves.

If any of your employees drive their own vehicles or your vehicles to do the job they are employed to do then you are relying on them being prompt and efficient when the DVLA writes to them.

Rather than take the risk it would be prudent to have a checking system in place, so you can ensure it has been done.

The second consideration is insurance, and this is very important.

If an employee drives for you whether in their own car or a company vehicle and their photocard license has expired then this will automatically invalidate the insurance policy that covers the vehicle.

This is not a concern for staff commuting to and from your place of work, but it is a concern if they drive for you as part of the job they do.

Licenses can be renewed online if the individual had a valid UK passport and renewal takes 3-4 weeks.

We would advise you not to take the risk and to check – if you need any advice please give us a ring

by Heather Jones

The duty of fidelity – what does that mean?

Directors will be aware of the ‘fiduciary duties’ owed by every director of a limited company to that company as a matter of law. Amongst other things, these fiduciary duties require directors to act in the best interest of their company, exercise independent judgement and avoid any conflicts of interest but what about employees?

Employees who are not directors do not owe fiduciary duties. However, there are various other duties and obligations which are implied into every employment contract by common law whether their contact says it or not and even if there is no written contract at all. Most notably, every employee owes a ‘duty of fidelity’, which requires them (the employee) to act in good faith towards their employer.

The duty of fidelity can leave the employee vulnerable to disciplinary proceedings (and potentially dismissal) if breached.

The obligations imposed on an employee by the duty of fidelity include the duties:

to act honestly towards their employer;
not to disrupt their employer’s business;
not to compete with their employer (either on behalf of another business or on their own account);
not to poach staff or solicit their employer’s customers and suppliers away from their employer;
not to misuse their employer’s property;
not to make a secret profit by (for example) diverting work away from their employer; and
to ensure that their employer’s confidential information remains confidential.

The duty of fidelity is rather broad, but the specific aspects of an employee’s duty of fidelity towards their employer will differ depending on the nature of the particular employment relationship and the seniority of the employee.

An employer who suspects that an employee is in breach of their duty of fidelity may have grounds to discipline the employee – particularly if the employer can show that the employee is not acting honestly, or they have breached confidentiality.

If you need any more information on this topic, please do not hesitate to call us.

by Heather Jones

Does an employee have to disclose a disability?

According to a recent study undertaken by BUPA, 43% of employees with a less visible disability haven’t disclosed it to their employer. This raises the question - do employees have to disclose disabilities, and what’s the legal position if they don’t?

There’s no specific legal obligation on employees to disclose that they have a disability. In fact, the survey found that 23% of those with a less visible disability hadn’t disclosed it because they were worried that they wouldn’t be believed, and 20% were concerned that it might impact on their career opportunities.

What is your responsibility as an employer?

Under the Equality Act 2010, if you do not know of an employee’s disability, and couldn’t reasonably be expected to know, there is no discrimination arising and no duty to make reasonable adjustments.

In other words - you need to have actual or constructive knowledge of the employee’s disability before you can be found liable for failing to make reasonable adjustments or for discrimination relating to disability.

However, just because an employee hasn’t disclosed their disability to you, or you haven’t found out about it through other means, you may still have constructive knowledge of it.

For example, if an employee is taking a lot more time off sick or for hospital appointments, or there are changes in their behaviour at work or in their performance levels, these could all indicate that an employee may have a disability. You should then take reasonable steps to find out whether they might be disabled, rather than burying your head in the sand.

Ways to investigate this may include, for example; holding return-to-work meetings following sickness absence, considering the reason for absence specified on their statements of fitness for work (fit notes), and seeking medical advice from the employee’s GP, or your occupational health (OH) advisors, with their consent. Although you must ultimately reach your own conclusion about whether an employee is disabled and not just unquestionably accept the opinion given by your OH advisors.

However, this is not to say that every employee who displays the above behaviours should automatically be considered disabled, and treated accordingly under the Equality Act 2010. Other times, a change in behaviour at work could simply be down to a conduct issue with the individual, which may require further action or progressing down your disciplinary procedure.

Similarly, you don’t need to take every step possible to establish whether an employee is disabled in order to avoid having constructive knowledge of their disability.

But you do need to ensure that you establish which route is appropriate for the situation in hand, and that you have taken all reasonable steps to do so, before taking action.

This can be a tricky area to navigate through, and each scenario is individual. If you have a situation that you are currently struggling with as an employer, please do not hesitate to get in touch so we can guide you appropriately.

by Heather Jones

Menopause and the Workplace

Last year, the Women and Equalities Committee of the House of Commons published the report ‘Menopause and the Workplace’. The Report made twelve recommendations to the Government, aimed at encouraging an improvement in the support and legal rights in the workplace afforded to women experiencing menopause. The Government has now published its response to the Report and outlined its approach moving forward.

The Report, published in July 2022, made several recommendations;

the appointment of a Menopause Ambassador to work with businesses, unions, and other groups to give guidance to employers.
the production of model menopause policies to assist employers;
for the Government to work with a large public sector employer to develop and pilot a menopause policy;
legislation for flexible working to become a day-one right to all employees;
to implement section 14 of the Equality Act which would have the effect of introducing sex and age as a single dual protected characteristic; and
to launch a consultation on amending the Act to provide for menopause as an individual protected characteristic.

The Government has agreed with some, but not all, of the Report’s recommendations.

It confirms that it will appoint a ‘Menopause Employment Champion’ to work with employers and the Government to highlight best practice and how they can improve support in the workplace. It also accepts the recommendation to make flexible working a day-one right for employees, something it has recently announced it will legislate on.

However, the Government has rejected several of the Report’s recommendations, including the implementation of a model menopause policy in the public sector (something it does not deem necessary due to current efforts to develop guidance and policies in this area).

A very important area that they did not agree with was the proposal to class menopause as a protected characteristic under the Equality Act – this has been refused. It is the opinion of the Government that it would be unworkable in practice. The Report comments that the current protected characteristics (specifically age, sex, and disability) already provide sufficient protection against unfair treatment of employees experiencing menopause.

If you want to know more on how you can protect yourself in this area, please do get in touch.

by Heather Jones