On 24 January 2023, following the publication of the ‘Menopause and the Workplace’ report by the Women and Equalities Committee (WEC) last summer, the government published its response. In its report, the government rejected several recommendations made by the WEC, including the implementation of the combined discrimination provision under section 14 of the Equality Act 2010, highlighting concerns about the additional burden this would place on employers.

While agreeing that women who suffer longer term or substantial menopausal effects should be protected from discrimination at work, the government found that there was inadequate evidence to support new legislation and rejected the recommendation to make menopause a protected characteristic.  

The government has, however, confirmed that in line with the recommendations, it will;

• appoint a Menopause Employment Champion to work with employers to ensure that menopausal employees are supported in the workplace; and
• lead a proposed employer-led communications campaign on menopause in work (although a time frame for this has not yet been set).

In a recent case a disabled civil servant was dismissed for long term sickness absence. As he had been dismissed for capability, he was entitled to Civil Service Compensation Scheme (CSCS) payments.

The Employment Appeal Tribunal (EAT) held that the tribunal had erred when it found that the employer’s choice to reduce the CSCS payments was discriminatory (due to the employee’s substandard attitude while on sick leave). However, the EAT upheld the tribunal’s decision that the dismissal itself did not constitute discrimination arising from disability.

The EAT found that the employee’s dismissal was justified by the employer’s intention to achieve a transparent and fair sickness management regime and to maintain effective use of resources.

A recent survey has revealed that managers no longer stigmatise flexible working, believing it results in improved productivity – though long hours are still seen as essential for career progress. The survey, by the Equal Parenting Project, questioned 597 managers across the UK.

Managers appear to be more positive about flexible working than they have ever been, with three-quarters believing it increases productivity and 62.5% considering it boosts motivation. However, it was noted that managers are more positive about some forms of flexible work – especially flexitime and home working, which became more common during the pandemic – than others, including those that particularly benefit parents, such as job shares, part-time work and compressed hours.

Employers can address this disparity by promoting all types of flexible working and altering performance evaluation to “break down the flexible working stigma” that was prevalent before the pandemic. Policymakers are also urged to require employers to report on flexible working practices as part of their gender pay gap obligations, as well as making flexible working the default for employers and requiring them to make a case for why jobs cannot be performed flexibly.

The Employment Appeal Tribunal (EAT) has concluded that it was not unfair to dismiss an employee despite the disciplinary issues having already been addressed under previous disciplinary proceedings which had resulted in a final written warning. While it is rare to reopen concluded matters, there is no general rule against ‘double jeopardy’ and this case is an example of where it was deemed fair to revisit the issues.

The employee held a senior position in an NHS Hospital Trust and had responsibility for improving racial equality. She faced disciplinary proceedings after numerous allegations of bullying, harassment, and discrimination, and ultimately received a final written warning. However, in the meantime, a report by the Care Quality Commission concluded that bullying, harassment, and discrimination were “rife” in the organisation, and the Trust was placed into special measures and taken over by another Trust’s executive team. The new chief executive questioned the previous disciplinary findings and instigated the process which led to the employee’s dismissal on the basis that she was not objectively credible or accountable to lead on race issues.

The EAT found the dismissal fair. Employers should act with caution when considering whether to re-open a disciplinary case that has been concluded, however in the right circumstances this may be appropriate.