Employment law 2022 round Up: What has (and hasn’t) happened

Fit notes

Amidst the heatwave of July 2022, a plan to reduce GPs’ workloads meant that, for the first time, statements of fitness to work (commonly referred to as ‘fit notes’) could be issued by other professionals. Whilst there has been some scepticism over the quality of diagnosis that nurses, occupational therapists, physiotherapists, and pharmacists can provide, there also seems to be some benefit arising in better access to fit notes. The aim remains to issue employers with constructive information and guidance as to how to keep an employee in work or facilitate a return.

Is menopause now a protected characteristic and/or is it capable of being a disability?

Menopause is not (yet) a protected characteristic in its own right. However, the symptoms associated with it have been held to be capable of amounting to a disability by the Employment Appeals Tribunal (EAT) in the case of Rooney -v- Leicester City Council.

There is a growing focus on this area, and it is still possible to make changes for the better in the workplace without waiting for the legislation requiring you to do so. We recommend you consider implementing a menopause policy or guidance/training on recognising the symptoms for all staff. Consider making support available for employees affected, and also those responsible for managerial decisions.

Could it be that there is a causative link between menopause symptoms and an employee’s behaviours/capability? Symptoms such as tiredness and lack of concentration are very common.

A recent study found that almost one million staff had left their jobs due to symptoms of the menopause, which represents a huge loss of experience and talent to any business.

Time to offer refresher training?

’Stale’ staff training was the employer’s undoing in Allay (UK) Ltd -v- Gehlen. In this case, the EAT emphasised the importance of up-to-date anti-harassment and diversity training for all staff, after an employee was subjected to racist comments from a colleague. The manager to whom he reported the matter did not recognise the unacceptable nature of the behaviour and the EAT suggested that more up-to-date training would have allowed the employer to rely on the reasonable steps as their defence or may have even prevented the discriminatory behaviour from occurring in the first place.

It might surprise you to know that the training was held just two years earlier. Is it time to refresh your staff training in this regard?

Offensive and disturbing beliefs now require protection under the Equality Act

By now you’re probably familiar with Forstater -v- CGD Europe – a key case in the quest to successfully balance competing rights of employees AND promote equality in the workplace.

The claimant made a number of posts on social media about gender identity, voicing opposition to the idea that sex can be changed. In doing so she caused offence to colleagues who found the remarks transphobic. Following an investigation, her fellowship was not renewed. She alleged that the nonrenewal of the agreement was an act of discrimination linked to her gender critical views. In order to succeed, she would have to establish that her views constituted a ‘philosophical belief’ to fall within the protection of the Equality Act.

The tribunal found that Ms Forstater’s case failed on the basis that her views were not worthy of respect in a democratic society, and/or were incompatible with human dignity and/or conflicted with the fundamental rights of others. The tribunal was particularly concerned that the claimant would refer to a person by the sex she considered appropriate even if it caused them offense.

On appeal, the EAT found that whilst her belief was offensive to some and had the potential to cause harassment of transgender people in some circumstances, beliefs which are offensive, shocking, or even disturbing to others, but which fall into the less grave forms of hate speech would not be excluded from protection. On the face of it, this is a difficult decision to reconcile against the rights of other staff. However, the judgment should not mean that those individuals who hold such beliefs can offend others with impunity – and it should not limit the rights of others to bring their own actions under the Equality Act. Essentially you need to find a way to handle ‘competing beliefs’ as was previously the case in religion and sexuality cases.

Our recommendations are that employers should try to create and promote a respectful culture which encompasses a wide range of beliefs. Diversity training should be considered to encourage inclusive attitudes in the workplace and encourage staff to embrace and recognise a wide range of beliefs, even where those beliefs may seem to clash with the beliefs of others. Overt policing of social media should be avoided – especially where a view is expressed with which you do not agree. Policies which place limits on social media in a bid to respect one party’s rights may in fact be discriminatory against another.

Retained EU Law (Revocation & Reform) Bill

Admittedly a contender for the dullest legislation title in a while, but one that could be huge in terms of employment law changes, and arguably the most significant since the discrimination and dismissal laws of the 1970s. This bill was published in September 2022 by the then Business, Energy and Industrial Strategy Minister, Jacob Rees-Mogg, and was widely described as a “bonfire of workers’ rights”.

Its significance is that, without extension or new legislation, it will automatically repeal aspects of current laws including TUPE, paid annual leave, the 48-hour working week, part-time and fixed-term worker regulations, and agency worker regulations. As it stands, a ‘sunset date’ of 31 December 2023 has been set. This leaves very little time for consultation on what will replace these laws, although this date could be extended to 31 December 2026. However, if nothing is done, these rights will simply expire.

Will they be replaced? And what with? Many questions with, thus far, very few answers. We will, of course, keep you updated on any developments in this area as they happen.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.