UK Employment Law Coffee Break: Changing working arrangements, fit notes and menopause

ET decisions highlight need for careful consideration when changing working arrangements

Media attention continues to highlight the difficulties employers can face when accommodating hybrid working within teams and managing individual flexible working requests. Some businesses are reviewing and resetting their approach to hybrid working and other flexible work patterns to meet business demands. Employees in turn may look to make flexible working requests, or (as seen in the cases below) seek to retain existing working patterns that have come under review, to meet their personal requirements.

Two recent Employment Tribunal decisions have highlighted the need for care when considering requirements around workplace attendance to perform a role.  

Compensation awarded for indirect associative discrimination where requirement to be office-based  

We reported previously on a decision in 2021 where the Employment Tribunal (ET) upheld a claim for indirect disability discrimination by association in light of an employer's requirement for a senior manager, who was the primary carer for her disabled mother, to be office-based.

The claimant had historically been employed on a homeworking contract due to the need to care for her mother but, along with other homeworkers in her role, she had been informed that she was at risk of redundancy as there was a need for "accessible and visible managers" to provide "oversight, supervision, advice and guidance". 

The ET accepted "as a general proposition and as a self-evident fact that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based because of their care commitments".

The requirement to work in the office therefore put the claimant at a substantial disadvantage because of her association with her mother's disability as her primary carer; no reasonable steps had been considered to avoid the disadvantage and the employer's "need to provide effective on-site and managerial supervision and support to more junior staff following a reduction in [Senior Lending Manager] headcount and the change in the nature of the… lending business" was not a legitimate justification.

The ET also found that the provision constituted indirect sex discrimination as more women than men are primary carers for elderly relatives.

Following a remedies hearing, the ET has now awarded £345,708 in compensation to the claimant, including awards for loss of salary, bonus, pension contributions and other benefits, and an award for injury to feelings.

It should be noted that on the face of it the Equality Act 2010 does not permit associative indirect discrimination (requiring instead that a claim is brought by a person who themselves has a protected characteristic) but the ET had previously determined that it had jurisdiction to hear the claim in light of European Court of Justice case law.

Requirement to work flexibly to provide a 24/7 service was not discriminatory

However, in another case, the ET has held that a requirement for all community nurses to work flexibly, including at weekends (the PCP – provision, criterion or practice), to enable care to be provided to patients in the community 24 hours per day, seven days a week and to balance workload amongst the team and reduce costs, was a proportionate means of achieving a legitimate aim for the purposes of indirect sex discrimination, despite the claimant's childcare responsibilities.

The claimant, a community nurse, had previously been permitted by her employer to work two fixed days a week in order to accommodate her childcare responsibilities (two of her three children had special educational needs) but which arrangement was subject to review. Her employer subsequently introduced a new policy to cater for evolving community nursing needs, which included a requirement for all community nurses in the relevant pool to work at weekends.

The question for the tribunal was whether the employer could show that the application of the PCP was a proportionate means of achieving a legitimate aim. This needed to be judged objectively by reference to a number of factors and required the tribunal to carry out a careful evaluation of the evidence in order to strike a fair balance between the claimant's rights as an individual and the interests of the wider community affected. In this case that community involved the patients for whose care at home the employer was responsible, the pool of community nurses providing that service and the overarching needs of the organisation to provide its services efficiently and in as cost-effective a manner as reasonably possible.

The ET at a remitted hearing held that the requirement to work weekends was objectively justified. Despite the impact of the "childcare disparity" – that women, because of childcare responsibilities are less likely to be able to accommodate certain working patterns than men (which the original ET had failed to take judicial notice of) – the employer's need to deliver community care services outweighed the disadvantage to the claimant identified on the tribunal's findings of fact in requiring her to work occasional weekends on notice (an alternative offer made by her employer which she had rejected), in respect of her circumstances and childcare options. 

Next steps  

These decision are a helpful reminder of the care that must be taken to consider the implications of any requirements around working arrangements for those who are protected or who are associated with a protected person and who may suffer a particular disadvantage with each case being carefully considered on its particular facts.

As well as clear, well-considered policies, this decision underpins the importance of manager training to ensure that policies are applied sensitively in light of the particular circumstances and to avoid asserting a "one size fits all" approach.

This will become even more important when regulations are introduced bringing a new right for statutory carer's leave and extending the existing right to flexible working. It will be important that managers do not simply see these as the default option but consider the wider legal and employee relations picture.

Where an employer wishes to reject an individual's desired working arrangements, it will be important to demonstrate the business case for rejecting the request and that the individual's particular circumstances have been taken into consideration so that any alternative accommodations, where they can be offered, are considered with the individual.

Fit notes: Updated government guidance issued and 'radical overhaul' potentially on the cards

Updated guidance on fit notes aimed at employers and line managers has been published by the government. It reminds employers that fit notes may now be issued by doctors, nurses, occupational therapists, pharmacists and physiotherapists. It now includes a "Checklist for Employers" which highlights key points to support discussions between an employer and an employee issued with a fit note.

These include:

• Where the employee "may be fit for work", discuss the fit note with them and see if you can agree any changes, including workplace modifications or reasonable adjustments to support them to stay in or return to work. Where appropriate, make referrals to support your employee in this.
• Check how long the fit note applies for. It should cover the duration that the employee is likely to require adaptation or be unable to work and a review date may be set by the healthcare professional.
• Maintain regular contact with the employee throughout the period and "get a sense of if/when the employee feels ready to review any workplace modifications or return to work". Employers are referred to Acas guidance on keeping in touch.

The guidance itself reminds employers that when an employee "may be fit for work", "interactive" health and work discussions should take place with the employee to see whether there are any changes which could support them to stay in or return to work. The employee "is best placed to determine how their symptoms affect their ability to perform certain tasks as well as what can trigger their health condition".

These discussions can involve line managers, HR, trade unions or occupational health specialists. It may also be appropriate to carry out a risk assessment to accommodate the advice on the fit note and consideration should also be given to the Equality Act when thinking about the management of sick leave and the return to work with reasonable adjustments as needed. A "reasonable keeping in touch plan" should be agreed with the employee so everyone has a clear understanding of next steps.

The guidance helpfully sets out possible changes to take into consideration, including working from home, reduced or flexible hours, a phased return to work, providing training or additional supervision, working in a team instead of by themselves (or vice versa) or arranging for an occupational health assessment.

Although the guidance recommends that employers "take any supporting information into consideration", employers are reminded that they are not obliged to agree with the healthcare professional's advice that the employee "may be fit" for work (and which will relate to the employee's fitness for work in general and not specifically about their current job). If it is not possible to agree on any workplace modification or adjustments, the same fit note can be used as evidence for sick pay purposes.  

As well as a series of FAQs, the guidance now contains case studies covering six scenarios, including making changes to enable an employee to work from home, providing for a phased return to work and providing support to return to work for an employee with a short-term illness due to long covid.  

The checklist reminds employers that the name of the issuer, the profession and the address of the medical practice should be completed to make the fit note valid. If an old template is provided (Med3 2017), the fit note must be signed in ink by the healthcare professional.  

The guidance also lists a number of helpful resources/guidance for employers when managing a range of disability and ill health issues, including returning to employment, supporting employees with personal or social problems and additional health care advice.

Employers should also refer to Acas' recently issued updated guidance on sickness absence. The Information Commissioner's Office (ICO) has also published guidance for employers on processing information about a worker's health which provides practical guidance and checklists on handling sickness and injury records, occupational health schemes, medical examinations and drugs and alcohol testing, genetic testing, health monitoring and sharing workers' health information. The guidance will be taken into account by the ICO where a complaint is made that there has been a failure to comply with data protection law.

Is a radical overhaul of the sick note regime on the cards?

The media has reported that the government is planning a "radical overhaul" of the sick-note regime as part of its back-to-work drive. Plans are stated to be in progress to reduce the number of people routinely being signed off for months at a time.

Mel Stride, the Work and Pensions Secretary, has stated that of the 2.6 million people classed as "long-term sick and disabled", only 1% were coming out of that group each month. He also claimed that GPs are currently signing people off "as being unfit for any work whatsoever" in nine out of ten cases. According to Mr Stride, the box on the fit note form where it can be stated that an employee would be fit for work under certain circumstances with adjustments "only gets ticked 6% of the time".

One option apparently under discussion is requiring workers to be triaged by a local medic or welfare official working as part of a new national scheme. This process would identify the most appropriate clinician or official for an individual to see under a "treat-them-first" principle where an individual is seeking a fit note. Instead of defaulting to a GP (as is the case in many instances now), individuals could also be referred to occupational or mental-health practitioners, physiotherapists, jobcentre work coaches and life coaches who could help the individual with problems such as debt or assist with work-related matters such as networking. A less radical option reportedly also under consideration is adding more options to the form, including a referral to a new work and health support service, but keeping GPs as the first port of call.

It may be that we see further announcements in this respect in the chancellor's autumn statement, which will be delivered on 22 November this year.

Menopause and the workplace

As has been widely reported, the Leicester Employment Tribunal is currently hearing a claim which has been remitted back from the Employment Appeal Tribunal that a claimant was discriminated against, harassed and victimised by her employer on the grounds of disability and sex.

The claimant was suffering from menopause symptoms and anxiety and depression causing her to take periods of extended sickness leave and for which she received a formal warning. Other allegations include inappropriate comments being made about her menopause symptoms. The claimant ultimately felt she had no choice but to resign.

The earlier EAT decision in this case 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 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, meant the case was remitted back to this new ET for consideration.

The claimant is supported in her claim by the Equality and Human Rights and Commission (EHRC) which has urged employers to support employees affected by the menopause. Where symptoms are significant, an employee may be disabled for the purposes of the Equality Act 2010, placing a duty on an employer to make reasonable adjustments.  

Guidance and recommendations

The EHRC has indicated that it will soon be launching new guidance for employers so that they have the resources to support staff going through the menopause. The government recently rejected calls to make menopause a protected characteristic in its own right.

The CIPD has also recently published the results of its survey of over 2,000 women aged 40 to 60 and who could be experiencing menopause transition. It explores the type of menopause symptoms being experienced and their impact at work, enabling the CIPD to explore the difference workplace support can make and the types of adjustments that are seen to be most helpful in managing symptoms (such as flexible working and the ability to control temperature), as well as the impact of menopause symptoms on an individual's ability to stay in and progress at work.

The report sets out a number of recommendations including supporting employees by: opening up the culture and encouraging conversations about menopause; developing a supportive framework; creating a strong and supportive culture around flexible working; managing health and absence in a fair and flexible way; and educating and training line managers.

The British Standards Institution has recently published a new national standard for workplace menopause support which includes recommendations for policies, workplace culture and work design.  

The Labour Party has indicated that, should it form the government at the next general election, it will introduce a requirement for large organisations to publish a menopause action plan and issue menopause guidance for small businesses.

We are working with clients on how they can support employees with menopause in the workplace. Please listen to our earlier podcast here where Employment partner, Danielle Kingdon, explores the legal and practical considerations for employers.