29.02.2024
1) Is the menopause a protected characteristic under the Equality Act?
No, menopause itself is not a protected characteristic under the Equality Act. However, depending on the circumstances, employees experiencing the menopause may be able to bring discrimination claims relying on the protected characteristics of age, sex and/or disability.
As regards disability, note that a person is disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. As the symptoms of menopause typically last between four and eight years, and can be severe, an employee experiencing the menopause may well meet the statutory definition of disability. As with any ongoing medical condition, it will not always be clear whether an employee’s menopause symptoms amount to a disability. Accordingly, the safest approach may be to proceed on the assumption that there is a disability. In practice, this will include seeking to make reasonable adjustments to help alleviate the impact of an employee’s menopause symptoms at work.
As regards disability, note that a person is disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. As the symptoms of menopause typically last between four and eight years, and can be severe, an employee experiencing the menopause may well meet the statutory definition of disability. As with any ongoing medical condition, it will not always be clear whether an employee’s menopause symptoms amount to a disability. Accordingly, the safest approach may be to proceed on the assumption that there is a disability. In practice, this will include seeking to make reasonable adjustments to help alleviate the impact of an employee’s menopause symptoms at work.
The following are some examples of how discrimination linked to the menopause might occur:
- If a manager refers a male employee who is suffering from ill-health to Occupational Health and makes adjustments to his workload based on their advice, but is dismissive of a female employee whose menopause symptoms are impacting on her work and instead starts capability proceedings, this would be direct sex discrimination.
- If an employee’s sickness absence causes them to hit the triggers in the employer’s attendance management policy and the employee is given a caution or dismissed as a result, this could be discrimination arising from a disability. A claim could arise where: the employee’s menopause symptoms amount to a disability; the absence is caused by those symptoms; the employer does not consider whether a reasonable adjustment to the triggers is needed and/or whether to exercise a discretion not to give a caution/dismiss; and the employer cannot objectively justify the caution/dismissal as a proportionate means of achieving a legitimate aim.
- An employee whose menopausal symptoms are treated as the subject of jokes or ‘banter’ by colleagues could make a claim for harassment (based on sex, age and/or disability) if the treatment is unwanted and has the purpose or effect of violating the employee’s dignity, or creating a hostile, degrading, humiliating or offensive environment for them.
Note that the Equality and Human Rights Commission has recently published new guidance for employers on menopause in the workplace which includes information on making workplace adjustments and preventing discrimination (see here).
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on supporting staff who are affected by the menopause. You can also download a copy of the Make UK template Menopause Policy from the HR & Legal Resources section of the Make UK website. In addition, we offer a suite of microvideos and a range of training options for staff, and specifically managers, to increase awareness about the menopause. Please contact us for further information.
If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on supporting staff who are affected by the menopause. You can also download a copy of the Make UK template Menopause Policy from the HR & Legal Resources section of the Make UK website. In addition, we offer a suite of microvideos and a range of training options for staff, and specifically managers, to increase awareness about the menopause. Please contact us for further information.
If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.
2) What statutory rates will apply from April 2024?
The Government has announced the statutory rates and allowances that will apply from April 2024, including the following:
- From 6 April 2024, statutory sick pay will rise from £109.40 to £116.75 per week.
- From 7 April 2024, statutory maternity pay, paternity pay, adoption pay, shared parental pay and parental bereavement pay will rise from £172.48 to £184.03 per week.
Note too that, as reported previously, the national living wage and national minimum wage will increase from 1 April 2024. See here for further details.
From 6 April 2024, the maximum statutory compensatory award for unfair dismissal will increase to £115,115 (up from £105,707), and the statutory cap on a week’s pay will increase to £700 (up from £643).
If you are a Make UK subscriber, you can speak to your regular adviser for guidance and/or access further information in the HRL Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
From 6 April 2024, the maximum statutory compensatory award for unfair dismissal will increase to £115,115 (up from £105,707), and the statutory cap on a week’s pay will increase to £700 (up from £643).
If you are a Make UK subscriber, you can speak to your regular adviser for guidance and/or access further information in the HRL Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
3) Can we ask an employee about the reason for their flexible working request?
There is no statutory requirement for an employee to say why they are making a statutory flexible working request. However, whilst the employer should never force the issue, it can help to discuss why the employee wants the change. Indeed, knowing the reason for a request will often help the employer and employee to have a productive discussion about the request and can highlight potential discrimination risks.
Note that if an employee tells you their reason for making a flexible working request, this may reveal information that counts as ‘special category’ personal data under data protection law, meaning that you will need a ‘special category legal ground’ to justify your processing of that information. For example, if the employee asks to change their working hours so that they can attend regular religious services, this reveals information about their religious beliefs. You could argue that processing that special category data is necessary for you to comply with a legal obligation in relation to employment (i.e. your obligation under the Equality Act to avoid discrimination when considering the employee’s request for flexible working).
In addition, when telling you the reason for their flexible working request, it is possible that an employee might provide you with another person’s personal data, for example if the employee is asking to flex their hours in order to care for a dependent. Strictly speaking, in accordance with data protection law, you should provide that person with a privacy notice to explain how you will process their personal data, your legal basis for doing so, etc. If this situation arises, we recommend that you seek advice on how best to address it.
Our employment law experts will be exploring the forthcoming changes to the statutory flexible working regime in our free webinar on 5 March 2024 (see here to find out more).
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Family rights and flexible working and Employee data and monitoring sections of our website. Make UK subscribers can also access our template Policy– flexible working (and application form), which includes in the attached application form a voluntary question about the reasons for an employee’s request.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources, or purchase our pack of essential flexible working documentation, which includes a template flexible working policy and a how-to guide for managers on handling flexible working requests. Please click here for information on how we can help your business.
Note that if an employee tells you their reason for making a flexible working request, this may reveal information that counts as ‘special category’ personal data under data protection law, meaning that you will need a ‘special category legal ground’ to justify your processing of that information. For example, if the employee asks to change their working hours so that they can attend regular religious services, this reveals information about their religious beliefs. You could argue that processing that special category data is necessary for you to comply with a legal obligation in relation to employment (i.e. your obligation under the Equality Act to avoid discrimination when considering the employee’s request for flexible working).
In addition, when telling you the reason for their flexible working request, it is possible that an employee might provide you with another person’s personal data, for example if the employee is asking to flex their hours in order to care for a dependent. Strictly speaking, in accordance with data protection law, you should provide that person with a privacy notice to explain how you will process their personal data, your legal basis for doing so, etc. If this situation arises, we recommend that you seek advice on how best to address it.
Our employment law experts will be exploring the forthcoming changes to the statutory flexible working regime in our free webinar on 5 March 2024 (see here to find out more).
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information in the Family rights and flexible working and Employee data and monitoring sections of our website. Make UK subscribers can also access our template Policy– flexible working (and application form), which includes in the attached application form a voluntary question about the reasons for an employee’s request.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources, or purchase our pack of essential flexible working documentation, which includes a template flexible working policy and a how-to guide for managers on handling flexible working requests. Please click here for information on how we can help your business.
4) What are the risks of failing to pay the national minimum wage?
Employers who fail to pay the national minimum wage, even inadvertently, risk the following:
- Tribunal/court claims: Workers could bring claims in the employment tribunal for unlawful deduction from wages or breach of contract on termination of employment, or in the civil courts for breach of contract.
- Civil enforcement: HMRC enforces the national minimum wage and can carry out inspections at any time. If a compliance officer believes that an employer has failed to pay the minimum wage, they can serve a notice of underpayment requiring the employer to repay the arrears to each worker named on the notice. In addition, they will impose a penalty of 200% of the unpaid wages, subject to a minimum penalty of £100 and a maximum of £20,000 per underpaid worker. The penalty part of the payment can be reduced by 50% if the employer complies with the notice within 14 days of its service.
- Criminal liability: There are six criminal offences relating to the minimum wage, from refusing or wilfully neglecting to pay the minimum wage, to failing to keep records and failing to co-operate with compliance officers. Directors can also potentially be convicted as individuals if the offence is committed with the director’s consent or connivance, or by their negligence. The offences are punishable by a potentially unlimited fine.
- Naming and shaming: If HMRC has issued an employer with a notice of underpayment for arrears of at least £500 and either the employer has not appealed or the employer’s appeal was unsuccessful, HMRC will refer the employer to the DBT for automatic naming via a press notice. If the arrears are more than £100 but less than £500, HMRC will refer the employer to the DBT for naming in certain circumstances (typically relating to repeated breaches of minimum wage requirements). The media focus on employers named in such notices can also be significant, particularly for well-known brands, and can cause serious reputational damage.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance and/or access further information in the Pay and benefits section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
5) An employee has sent us an email setting out various complaints but hasn’t labelled the email a ‘grievance’. Do we need to respond?
Yes, it is advisable to treat this as a grievance. An employee does not need to expressly label their complaint as a ‘grievance’ for the law to treat it as one. This means an employee could be found to have raised a grievance in a range of communications, such as in correspondence or documentation created for another purpose (e.g. on an appraisal form, on a sickness self-certificate, or in a resignation letter), or in a meeting called for another reason (e.g. during a return-to-work interview or exit interview).
Remember too that third parties can raise a grievance on an employee’s behalf (assuming they have the employee’s authority). If a solicitor sends you a letter setting out concerns on behalf on an employee, you should treat this as a grievance. Trade union representatives and family members can also raise complaints on behalf of an employee.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on handling grievances and/or access further information in the Discipline, grievance and performance section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
Remember too that third parties can raise a grievance on an employee’s behalf (assuming they have the employee’s authority). If a solicitor sends you a letter setting out concerns on behalf on an employee, you should treat this as a grievance. Trade union representatives and family members can also raise complaints on behalf of an employee.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on handling grievances and/or access further information in the Discipline, grievance and performance section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.