To mark International Women’s Day 2023, Eaton Smith Employment Lawyers, Emma and Irina share recent developments in employment law relevant to the protection and support of women’s rights:

Redundancy Protections for Pregnant Women

Stronger redundancy protections for pregnant women and those returning from parental leave are expected in the Protection from Redundancy (Pregnancy and Family Leave) Bill, a private members’ bill introduced by Dan Jarvis MP. The bill is backed by the Government and received its second reading in the House of Lords on 3 March 2023.

Currently, the Employment Rights Act 1996 (ERA 1996) allows the Secretary of State to make regulations concerning redundancy “during” periods of maternity leave, adoption leave or shared parental leave. For example, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) (MAPLE), before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with the employer or an associated employer.

The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy “during or after” an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy “during, or after” a “protected period of pregnancy”. The intention is that the new regulations will apply the MAPLE protections through an expanded period covering from when a woman tells her employer she is pregnant until 18 months after the birth. The 18-month window ensures that a woman returning from a year of maternity leave can receive 6 months additional maternity protection. The explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.

Menopause

On 24 January 2023, the government rejected the Women and Equalities Committee WEC) recommendation to make the menopause a protected characteristic under the Equality Act. The government had previously confirmed it was not proposed government policy to make menopause a protected characteristic in June 2022, explaining to do so would introduce further complexity and costs for employers. Despite this, employment tribunal case law demonstrates how an employer’s treatment of staff experiencing the menopause can potentially give rise to discrimination at work.

In some cases, an employer’s treatment of women of menopausal age can amount to sex discrimination, for example in the case of a woman who was dismissed following a final warning for poor performance despite providing her manager with a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times.” Her manager chose not to carry out any further medical investigations of her symptoms in breach of its performance management policy. The tribunal upheld her claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted “this bizarre and irrational approach with other non -female-related conditions.” (Merchant v BT Plc ET/140135/11).

There have also been successful claims for sex and age harassment where women have been subjected to inappropriate menopause related remarks and criticism at work.

In some cases, the symptoms of the menopause can amount to a disability. In Davies v Scottish Courts and Tribunals Service ETS/4104575/17, Ms Davies was disciplined and dismissed due to her forgetful and confused behaviour which were symptoms of her peri-menopause. Her employer considered that she had lied and brought the court into disrepute when she advised two colleagues in court that they may have drunk water containing her medication. Ms Davies was dismissed and successfully claimed unfair dismissal and discrimination arising from disability. The employment tribunal held that her dismissal was because of conduct arising from her disability (as her peri-menopausal condition caused her to be forgetful and confused about whether she had taken her medication and put it in the water). Her employer was unable to justify the treatment as being a proportionate means of achieving a legitimate aim (having an honest and trustworthy staff).

Gender Pay Gap Reporting

In 2017 Gender pay gap became mandatory for employers with at least 250 employees with employers required to publish details of their gender pay gap on a publicly accessible website on an annual basis. The Government Equalities Office has published new statutory guidance for employers on gender pay gap reporting, updating the format of its previous guidance to make it clearer and simpler, locate it in one place https://www.gov.uk/government/publications/gender-pay-gap-reporting-guidance-for-employers. Recent TUC analysis shows that the current gender pay gap of 14.9% equates to women working an average of 54 days for free this is two days less than women worked for free in 2022.

If you or your business require advice on any of the above issues please email employment@eatonsmith.co.uk