UK Employment Law Coffee Break | Ageing workforce report, philosophical beliefs, and paternity leave reform

Our ageing workforce report

Following our event on Tuesday 4 July, we are pleased to launch our new report "Providing for tomorrow today: understanding an ageing workforce". With over a third of the current UK workforce falling within the over-50s age band, our UK-focused report draws out some key learnings to help employers prepare and provide for an ageing workforce. 700 UK employees aged 35-55 from across a range of sectors were asked about their workplace experiences, preferences and future expectations: examining areas such as benefits, pensions, retirement age, skills gaps and training.

Respondents to the survey discussed in the report stated they would expect to retire at an average age of 62 (based on their current financial circumstances) and 83% of respondents said that their company is supporting them in planning for their retirement. However, 96% of respondents said that they would need additional training to ensure that they can do their job until their intended retirement age, while 79% would like to work remotely in their current role from an overseas location at any time up to their intended retirement age. These, together with other findings, were discussed by our panel at our event on 4 July; please look out for our forthcoming Insight on the key observations for employers as they navigate an ageing workforce.

Download the report > 

If you would like to discuss any of the findings in the report and how we can support you in taking your next steps, please contact your usual Osborne Clarke contact or employment partner, Olivia Sinfield.

EAT provides guidance on gender critical beliefs: what do employers need to consider?

We reported in an earlier Coffee Break on the Employment Tribunal decision in the Forstater case finding that a claimant who held a "gender-critical" belief that "biological sex is real, important, immutable and not to be conflated with gender identity" did suffer unlawful direct discrimination and victimisation due to that belief when she was not offered employment and her visiting lectureship was not renewed in light of tweets she had published.

The tribunal in that case noted that, in line with existing case law, the relevant distinction to be made in determining direct discrimination was "between the holding of the protected belief and/or the manifestation of that belief in a way to which objection could not be justifiably taken on the one hand, versus the manifestation of the belief in a way to which objection could justifiably be taken on the other". What this essentially means is that where there is less favourable treatment, the question should be whether the treatment is because of the manifestation of the religion or belief itself or because of the inappropriate manner in which it is manifested (tested by reference to the European Convention on Human Rights and case law).

Inappropriate manifestation of a belief: EAT guidelines for assessing proportionality

The Employment Appeals Tribunal (EAT) has now provided further guidance on approaching the question of whether an employer's actions are because of or related to the manifestation of an employee's beliefs or are in fact due to a justified objection to the manner of that manifestation: that is, where the law permits the limitation or restriction of that manifestation to the extent necessary for the protection of the rights and freedoms of others. Determining this question will require a proportionality assessment to be undertaken.

While emphasising that a "danger can arise from any attempt to lay down general guidelines in cases such as this" - any determination will inevitably be "context specific" and "different considerations will inevitably arise depending on the nature of that employment" – the EAT has helpfully set out "basic principles" for carrying out this proportionality assessment in the employment context. These include the need to have specific regard to:

• the content of the manifestation, the tone used and the extent of the manifestation
• the worker's understanding of the likely audience
• the extent and nature of the intrusion in the rights of others and any consequential impact on the employer's ability to run its business
• whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk
• whether there is a potential power imbalance given the nature of the worker's position or role and that of those whose rights are intruded upon
• the nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients
• whether the limitation imposed is the least intrusive measure open to the employer.

The case has now been remitted back to the tribunal for consideration on the facts.

What does this mean for employers?

We are seeing an increasing number of cases in the employment tribunals dealing with the complex and often delicate situation where the beliefs of an employee conflict with those of other individuals. With the increasing profile of equality, diversity and inclusion issues and employers demonstrating their support for LGBT+ inclusion, this remains an area where employers will need to remain alert to the potential for issues to arise and for the sensitivities involved.

This recent EAT decision is timely in emphasising the real care needed by employers in handling cases where personal beliefs potentially impact the workplace.

In the Forstater case the Employment Tribunal recently awarded the claimant damages in excess of £100,000, including an award of £25,000 for injury to feelings as the discriminatory acts were significant, showed that the respondents did not want to be associated with the claimant and affected her status both within the respondents' organisation and in the eyes of the wider professional world. An award of £2,000 was made for aggravated damages due to public statements made on behalf of the respondent which were considered "oppressive or high-handed conduct in overstating judicial observations about the claimant's belief and in equating that belief to bigotry".

While regard should always be had to the specific circumstances of each case, the EAT guidelines help provide a framework for employers in determining what action is or is not appropriate. It is important for employers dealing with an employee expressing views that they could negatively associate with their business or cause offence among the wider workforce not to take knee-jerk action and to consider what less intrusive measures could be effective – the EAT notes that there will be a need for "nuanced decision-making; there is no 'one size fits all' approach".

It is notable that a number of cases have arisen from use of social media and employers should consider revisiting their policies and providing training to employees on expectations in this respect, including considering the tone used and likely audience, together with the use of disclaimers on personal social media profiles.

Paternity leave reform

Last month saw legislation passed to provide specific statutory leave for carers and for those whose baby requires specialist neo-natal care; we are currently awaiting implementing regulations to provide further details on these new rights and a commencement date. (See our earlier Insight.)

The government has now announced as part of its response to its "Good Work Plan: Proposals to support families" (published in 2019) that it will introduce in "due course" changes to paternity leave to enable it to be taken as either two consecutive weeks of leave or two separate blocks of one week of leave at any point within 52 weeks after birth. The notification requirements will also change – while entitlement to take paternity leave must still be given by the 15^th week before the expected week of childbirth (unless this is not reasonably practicable), only 28 days' notice will be required of the date that an individual intends to take a period of paternity leave.

While the government has not indicated any timescale for the introduction of these changes, they are unlikely to require detailed regulations and it may be that we see them implemented sooner rather than later. When these changes do become law, employers will need to update paternity policies accordingly.

The government has confirmed that no changes are proposed to the existing statutory regimes for shared parental leave and unpaid parental leave; it has however taken the opportunity to remind employers of the online shared parental leave eligibility tool launched in 2021.