Two separate announcements were made in January regarding the Government’s response to its consultation on workplaces and the menopause, and a new consultation on the fire and rehire process.
Both are topical issues as discussed in our recent articles on menopause and the now infamous P&O situation.
In this article, Employment Solicitor Chris Dobbs outlines how the Government has responded to the consultations and discusses whether their response has been adequate in dealing with these issues or not.
Menopause at Work
Following a period of consultation, the parliamentary Woman and Equalities Committee published their report, ‘Menopause and the Workplace’ in July 2022.
Having spoken with businesses, legal experts, those experiencing menopause in the workplace and trade unions, it made a series of recommendations for the Government to consider:
- The appointment of a menopause ambassador to liaise with stakeholders
- A pilot ‘menopause leave’ scheme in the public sector along with standard policies
- Trigger Section 14 of the Equality Act 2010 to allow for ‘combined/dual characteristic’ discrimination
- To consult further on whether the menopause itself should be a protected characteristic under the Equality Act
How have the Government responded to the recommendations?
Of the recommendations set out in the report, the Government has confirmed that it will only consider appointing a ‘menopause employment champion’. The other recommendations were rejected entirely.
This is not to say that government does not consider the menopause a serious issue, particularly the workplace experience of those who are menopausal, or that it would condone discriminatory conduct.
The Government’s position is that the menopause has, and can continue to be, successfully argued on the basis of age, sex and disability and so there is no need to trigger additional or existing legislation to risk complicating the current regime.
Missed Opportunity?
In many ways, this response misses the wider issue that the menopause affects a significant section of the current UK workforce.
While it may not be the case that the menopause by itself needs to be a protected characteristic (this, perhaps, triggers the argument that puberty would also need to be considered), the Government is missing an opportunity to coordinate the response.
Claims pertaining to the menopause are increasing and there is only so much that employers, unions, Acas, and their advisors can all do to mitigate where there is a degree of unknown.
Opening the conversation more broadly may well have helped bring an issue which is only just finding its way to the forefront even more into the spotlight. Ignoring a problem, as we all know, does not make it go away.
What’s the current law regarding menopause in the workplace?
For the time being the law remains that unwanted behaviour relating to the menopause, its symptoms, or effects is capable of triggering claims for discrimination on the basis of age, sex or disability.
In all cases, the onus is on the claimant in the first instance to show the link between the unwanted conduct or unfavourably treatment and the protected characteristic.
Employers should remain aware of the risks of claims by those going through the menopause especially in light of recent high-profile cases which demonstrate that such claims do exist.
Fire and Rehire Consultation
It was also announced this week that the Government has launched a separate consultation on introducing a statutory Code of Practice for so-called fire and re-hire.
The proposed Code would be issued under Section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992.
This would mean that it would become a relevant code for the purposes of imposing an uplift for non-compliance in the case of a successful Tribunal claim.
What is fire and rehire?
Sometimes known as dismissal and re-engagement, the process of fire and re-hire is used by employers during proposed contract changes or, in some cases, redundancy situations.
It is legal and can be justified by an employer in extreme situations but is rarely recommended by legal and HR professionals due to the serious risks of contract and unfair dismissal claims.
How does fire and rehire work?
Where a variation to contracts cannot be agreed, an employer may decide there is no option but to dismiss the affected staff and re-engage them on the new terms.
In effect, this is a way of unilaterally imposing the terms without the need for agreement to vary; staff who don’t agree the change are not re-engaged.
Fire and rehire came to the forefront most recently when P&O Ferries received significant press coverage for using a version of the practice. Strictly speaking, P&O dismissed 800 staff and rehired cheaper agency workers, but the principle is very similar.
Related Article: Should fire & rehire be illegal?
What are the changes regarding fire and rehire?
The proposed Code of Practice looks very similar to a redundancy consultation and includes:
- A duty to inform affected staff of as much relevant information as reasonably possible
- A duty to engage in meaningful and ‘good faith’ consultation with those staff
- A notice not to use the threat of dismissal as a negotiation tactic or coercion method to get agreement by consent where dismissal is not seriously contemplated
- That unilateral changes should not be considered unless all reasonable alternatives have been explored first
Code of Practice: Advice for employers
Chris Dobbs, Employment Solicitor at Frettens, said: “There is already some concern as to whether this new Code of Practice will actually discourage the practice any further. It is already rarely advised and often used by employers only in extreme situations.
The risk of contract claims and unfair dismissals already exists and if that alone does not put employers off using the procedure, it does seem hard to imagine that the potential for an uplift would do so any further.”
Will the new Code of Practice work?
Chris continues: “A Code of Practice only works when staff ultimately exercise the right and bring potentially expensive proceedings.
Unfair dismissals can have low value compared to the financial and emotional cost of bringing them so while these proposals lay out a new framework, I would question the difference they would potentially make.
This is a far cry from the new Employment Bill we have been regularly promised over previous years.”
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