Employment Law Coffee Break | Covid-19 update, menopause at work, and flexible working and sexual harassment

Covid-19 update

Despite increasing cases, England has not yet seen any increase in restrictions under the government's autumn/winter plan. It remains the case that the government has only introduced a requirement for mandatory vaccination for those working in care home settings (from 11 November). Any requirement in other workplace settings for proof of vaccination or a negative Covid-19 test remain at an individual employer's discretion and subject to assessing potential health and safety, data protection, equality and employment law considerations. We are happy to advise you on the best approach for your business.

With governments across jurisdictions taking different approaches to managing the health and safety risks the Covid-19 pandemic gives rise to, international organisations must continue to understand the rules and legal considerations in each country and encourage managers and employees across jurisdictions to understand and remain sensitive to these differences in approach; for example, most recently, Italy is set to introduce a requirement for all workers in the private sector to hold a Green Pass in order to enter the workplace - a worker who is required to have a pass but does not have it when entering the workplace will be considered absent without justification resulting in their immediate suspension from work without salary.

Menopause in the workplace: Is it time for your organisation to implement a policy and train staff?

The past year has seen increasing awareness of the physical and psychological symptoms of menopause and the need for employers to provide support in the workplace. This is particularly so as more women remain in employment later in life when menopausal symptoms tend to be experienced (although it is important to recognise that menopausal symptoms are not solely defined by age and may be experienced much earlier). A recent poll of 3,800 women in the UK has found that the majority felt menopause, or the months and years leading up to it, has had a huge impact on their careers. A failure to recognise the difficulties individuals may be experiencing risks employers losing valuable skills and talent, as well as costly legal claims, with statistics indicating a rise year-on-year in Employment Tribunal claims referencing menopause.

Most recently, the Employment Appeal Tribunal has emphasised the difficulties which can be faced when considering issues such as whether or not an individual's menopausal symptoms satisfy the definition for a disability under the Equality Act (bringing with it the duty on an employer to make reasonable adjustments, as well as a duty not to unlawfully discriminate) and whether the alleged treatment of an individual with such symptoms (for example, where an individual feels that they are not being taken seriously or treated sensitively) constitutes unlawful discrimination and harassment. Here, a lack of reasoning from the original Employment Tribunal (ET) on its decision that the claimant was not disabled and had not been unlawfully discriminated against or harassed, given the factual evidence before it and which the ET had not rejected, has meant that the case has been remitted back to a new ET for consideration.

What should employers be doing?

The EAT decision emphasises an issue many have been calling for action on: should women be left to argue in the courts that their menopausal symptoms are a disability, or should menopause be protected in the same way as pregnancy and maternity? Menopause is a topic that is gaining increasing media profile as campaigners seek to overcome its "taboo" status and with employee wellbeing firmly in the spotlight as businesses recover from the Covid-19 pandemic, it is now incumbent on employers to ensure that all sections of their workforce have a safe and supportive culture; policies and procedures do not directly or indirectly discriminate against sections of the workforce community; and managers give careful consideration to individual concerns with support from HR. We are currently awaiting recommendations from the Women and Equalities Committee following their inquiry into menopause and the workplace, including whether further legislation is required to adequately protect menopausal women from discrimination at work. However, this should not hold up action within an organisation to support those experiencing menopausal symptoms now:

•  Increasingly employers are introducing menopause policies – not only do these demonstrate an employer's support for those with menopausal symptoms but it is a helpful tool for individuals to understand the support they can expect, how they can access this and, where they are not comfortable speaking to their manager directly, a way of raising their concerns.
• Providing training for line managers to ensure awareness of difficulties that members of their team may be experiencing, how to deal with these sensitively and ensuring that appropriate accommodations (or any statutory reasonable adjustments) are made. For example, employees may request to work flexibly if it is more comfortable for them to work at home or sit in a cooler area of the building, take more breaks allowing them to move outside, or wear an adapted uniform etc. It will be important for managers to set the tone for employees to feel supported within their teams, and to create a culture of support while remaining sensitive to the individual's personal circumstances.
• Many organisations now run virtual "lounges" in a number of areas open to all individuals who may want to seek support from others in the organisation in a similar position to them, or who wish to gain a greater understanding of the challenges others are facing as an ally.
• Reviewing occupational health support provided: ensure that, where possible, an employee is able to see a female doctor where this would enable them to feel more comfortable discussing their symptoms and the difficulties they are facing. Are there other resources or support which can be made available, for example through private health insurance benefits or via other organisations?

If you would like to discuss considerations for your business, please do contact your usual Osborne Clarke contact or partner, Danielle Kingdon.

Our latest webinar: Join us this Tuesday to talk about flexible working and sexual harassment

Please join us on Tuesday 19 October when partner Anna Elliott and associate director Leanne Coates will look at government reforms and the latest case law around flexible working and harassment and what this means for organisations – please register here.