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In this episode, we discuss questions like:
We look at how gender equality issues are changing, and help HR and legal teams to navigate the risks, challenges and debates and to discharge their duties. We also highlight a story that considers: when is a sex discrimination case not a sex discrimination case?
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Jonathan Rennie: Hello, and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner in our national employment team, based in Glasgow, and today I'm joined with Siobhan Fitzgerald, a partner in our Bristol team who's co-chair of our Women's Equality Network.
Siobhan Fitzgerald: Hi there.
Jonathan Rennie: And also Sarah Maddock, who's now our senior knowledge lawyer.
Sarah Maddock: Hello.
Jonathan Rennie: So in today's episode, we're looking at the shape of the current gender equality debate, which is a really big issue. And remarkably, it's very clearly still a big issue after nearly fifty years since the Sex Discrimination Act of 1975. And we'll be looking at some of the new risk areas that employers might be faced with.
We're going to look at the extent to which this is a society issue versus a workplace issue, knowing that there's clearly a little bit of overlap there. We're going to look at the question of whether policies and affinity networks make a difference, and we like to think that they do, of course. The question of whether the government is likely to reform gender pay gap reporting laws, and whether the pandemic has successfully decoupled gender from flexible working.
Now, before we get into the main topic, Siobhan, a rather unusual recent employment tribunal case, widely reported as being the “bald man case”. And if the newspapers are to be believed, it's now sexual harassment to insult a man on the basis of his lack of hair. Now, thankfully I'm not short of hair, although it’s very grey these days and might create an age discrimination issue, but Siobhan, what's your take on the case?
Siobhan Fitzgerald: Well, Jonathan, this is actually a really interesting case, and as ever the press haven't got the law quite right. So it's not a sexual harassment case, and this is quite an important distinction and a useful trend just for our listeners to understand.
So to recap on this case, it was a claim brought by a Mr. Finn against his employer, the British Bung Company, after he was called a bald c-word at work. What really upset him here was not the c-word but actually the insult based on his lack of hair. It was clearly harassment, in that it was hostile, degrading and humiliating. But there's no standalone law against this so you can't just bring a standalone harassment claim, you've got to bring it on the basis of a protected characteristic under the Equality Act, so race or sex or disability, for example.
So what we've not seen before though, and what Mr. Finn argued, was that baldness is so closely linked to masculinity that insulting him on the basis of his baldness was basically the same as insulting his biological sex. So in other words, baldness and masculinity are so intrinsically linked that they're essentially the same thing. Now, we've not seen that argued before, so in fact, what he was saying is it's a sex-related harassment case. And actually, interestingly, the employment tribunal agreed with his reasoning, and it said that commenting on a man's baldness is akin to commenting on a woman's breasts, for example, and both would be sex-related harassment.
Now, I don't know about you two, but this is not an argument I've seen before but you can see why the tribunal reached the decision it did. So, I think it shows a bit of a tendency for claimants here to strain the law a bit to try and fit the circumstances of the facts of their case, within the provisions of the Equality Act.
Jonathan Rennie: Getting back to our main topic then, we've obviously covered sexual harassment in episode one and gender equality has cropped up in our flexible working and also our working parents episode. Sarah, why do you think it's timely to look at this again?
Sarah Maddock: It's been a good fifty years since the first sex discrimination legislation appeared, and it is still a timely topic because as I was preparing for our recording today, I don't think a day went by when there wasn't something on gender equality in the headlines.
And having said that, of course, we all know that there have been massive improvements to gender equality at work over the last fifty years or so. So, it's not the sort of thing that we used to see about women being paid less than men for doing the same job or an expectation that immediately on getting married, a woman would shimmy off away from her role at work. But we are still a million miles away from sexism at work being solved.
Just some examples that jumped out at me recently were Amanda Blanc, who's the chief executive of Aviva who suffered a barrage of sexist comments at their AGM in May. And then around the same time, the Scottish Football Writers Association had to issue an apology after sexist jokes were made during a speech at an award ceremony, and some people walked out but a lot of people laughed along.
And what's really telling about this is that these are not outlandish stories that I've had to dig really hard to find; this type of treatment is common, inside and outside of work. So a lot of employers would say, for example, that inequalities at work are just reflective of wider issues in society. And they might put their hands up and say, "Well, this isn't something that we should be held accountable for." But I don't think that's a sufficient answer anymore, because work is such a huge part of life for the majority of people and therefore I do think that employers have got, not just a legal but also a moral duty, to step up and try to take steps to remedy some of those inequalities, which are very apparent.
Then I think allied to that, there's also the issue around ESG (environmental, social and governance) credentials. This is something that's really coming to the fore at the moment and gender equality is a really important part of that. And with the current challenges around recruitment and retention at the moment, employers really do need to show a strong hand with ESG and equality, diversity and inclusion.
Jonathan Rennie: We'll hear in today's episode that even though some of these issues are not covered by the law – so for example, there's not specific legal protections for menopause, menstrual health issues or early stage IVF, as yet – a big story can definitely force employers to show their hands and that reputational aspect obviously can be a bigger risk when the employment market is like it is today.
Sarah Maddock: Yeah, I think that's right, Jonathan. So I think we'll go into that a bit further. And Siobhan, I think you were just going to make some comments about discharging your duties as an employer, which at the moment is a lot more than simply having a sex discrimination policy and running an equality webinar every now and again.
Siobhan Fitzgerald: Yes, I think you're right, Sarah. Probably in years gone by, employers, if they had a policy and perhaps they'd run some training or a session for staff, that was ticks in the boxes and that one could be put away for another year. But that's not the case anymore.
Now I don't want to undermine the importance of a policy, because as employment lawyers, we'll always advise that a really well drafted policy is an absolute must. So that's your baseline. And you, of course, need to have zero tolerance of sex discrimination at work, and policies probably linked to your equalities policy would be things like whistleblowing, anti-bullying and harassment. So there's sort of a template of policies that you need to have there as a given. But of course, having that and a bit of training once in a blue moon isn't going to be enough anymore.
And that was really brought home in a recent case of involving racial harassment, where the employment appeal tribunal said that an employer had allowed their equalities training to become “stale”, as they described it, and therefore the employer wasn't able to run the statutory defence to escape liability for the discrimination because they simply couldn't show that they'd done enough to educate employees about harassment and discrimination at work, and to prevent that from taking place.
So, obviously, new recruits can be trained as part of their induction process, and hopefully that would be happening already, but it's really important to think about refresher training – so maybe once a year at an absolute minimum, but I think probably more often than that. And it doesn't just need to be a big training session, there can be little shorter ways to remind staff of what's required of them. And these days we all do our training, don't we, remotely or there are different ways to engage in with staff, so it might be slightly easier than having to get everybody in a room. Acas actually has lots of really good tips in an advice note that they've got online on improving equality, diversity and inclusion in the workplace, so we'll include a link to that in the notes.
Jonathan Rennie: Yeah. Listen, I absolutely endorse all of that, Siobhan. It's always a little bit embarrassing for an organisation if they find themselves in an employment tribunal and they're talking about a policy and they're not very familiar with its terms, or the policy is a bit out of date or those values aren't lived values. And of course, organisations can be caught out in that fashion.
Now, something else that comes up from time to time is the concept of whether improving diversity might be achieved by having women-only quotas. It came to our attention that actually this idea of legislating for quotas is something that is being looked at in other European countries this month. But of course, we know that that debate raises a whole range of other issues around such things as positive discrimination, respect, fairness and even the basic question of whether that actually assists women or reinforces the stereotype i.e. that the women would only get these senior roles by reason of quotas.
I think it's clearly a debate that's going to continue to rage on. And so what we want to do is we want to look at a range of tools for organisations and some more considered or nuanced discussion in this area as to how to move on.
Very obvious to say that many studies show that more diverse organisations where people are allowed to be themselves are both more profitable and successful and nicer places to work. For myself, I think it can actually create a more fun environment when people have different perspectives, different experiences and we can all learn in that way. I read an article in the Financial Times actually that talked about this and how some of the business schools now are offering courses aimed at bringing about cultural and structural change in the workplace to address these matters, and looking more closely at equality, diversity and inclusion concerns. So, there's lots of good reasons – I’m going to repeat that, lots of good reasons – for all companies to be addressing this and making sure they're making sufficient, rapid progress.
Siobhan Fitzgerald: Yeah, Jonathan, I do completely echo that. I think employers are beginning to realise that a diverse workforce actually is better for business, as well as the other good reasons why you would want to have that in place. And I think this is really where we need to see employers focusing their efforts: on probably moving on from those policies and a bit of training to more sophisticated ways of ensuring sex equality in the workplace.
So for example, here at TLT, we've done various forms of community outreach, engaging with our clients to help school leavers, for example, understand a bit more about the profession. And we have actually put in place, not quotas but targets for female representation at partner level. So if you'll permit me to talk about TLT for a moment, we've got a target of 33% for female representation at partner level by 2025. And we also run a very active Women's Equality Network here, which I co-chair. Now, on International Women's Day in March, we were really pleased to announce that we'd already reached 30% female partnership. So we're heading well towards our target of 33%. And in fact, that's just gone up a little bit more because we've just announced our recent promotions in May. So I'm really pleased to see us going in the right direction, but recognising that there's lots more to do and we really want to positively build on the progress to date to make sure that we achieve our targets and go beyond.
So Jonathan, at the outset, you mentioned staff networks and their importance and I think that's something that we've really begun to recognise at TLT. The Women's Equality Network published its annual report at TLT internally on the 11th of May this year – which is actually National Day for Staff Networks, which is worth knowing – and I think the affinity networks can be extremely powerful in an organisation if they're done well. So obviously you need to make sure it's not just a box-ticking exercise but that it's got a really clear mandate, and of course the power to bring about change: that the network is actually listened to and their ideas are actioned upon. And I think as a result of that, we've achieved some really tangible results in the last couple of years.
Jonathan Rennie: The male members of staff are totally able to come along to these events, Siobhan, and I myself have come along and really benefited from that.
Siobhan Fitzgerald: Yeah. Jonathan, I think that male allies are so important for this issue.
Jonathan Rennie: If we think about specific initiatives for our listeners, could you give some examples of what you've been working on?
Siobhan Fitzgerald: Yeah. So firstly menopause, which is a really increasingly big topic that employers are beginning to understand: that actually, it needs to be dealt with in the workplace as well as a private matter that no one wanted to talk about.
Jonathan Rennie: Sure.
Siobhan Fitzgerald: So TLT has recently published a menopause policy, and on World Menopause Day last year, we held a firmwide webinar in discussion with one of our female colleagues who very bravely was willing to share her experiences. It's not easy to listen to because some of this stuff is tough, but it was one of the most powerful firmwide webinars we've done. And I think that people telling their individual stories, if they're happy to do that, is what really makes a big impact on people at all levels of the organisation. And we've also been looking at our maternity benefits for parents within the firm, and we've introduced a ramp up, ramp down programme for expectant and returning parents, and also a new paternity and non-birthing parental leave provision consisting of four weeks full pay to empower partners to be active caregivers, which we really think is market leading and we're excited about that.
Jonathan Rennie: I think if anybody is interested in hearing more about affinity networks particularly, you can also hear about what our BAME network has been doing in our recent episode on race discrimination.
Siobhan Fitzgerald: So something that's the opposite of a news story, because it didn't happen or at least it hasn't happened yet, is gender pay gap reporting and the government's review of this regulation, which was due to be by the end of March 2022, so we can only assume it's probably been delayed until later this year or we'll hear something a bit more from the government in the near future. But it's still worth considering how we feel this has gone in the absence of that review, and whether we think the government's likely to suggest any changes.
So the Fawcett Society has said that the UK is too light touch, so it doesn't require companies to publish a plan of how they're going to address the gap. So as you know, that's not a requirement, it's just strongly encouraged. And their comparison of ten other countries that have this sort of legislation shows how much further they have been prepared to go rather than us, and that's a bit of a source of pressure for the UK government. So we could see some changes to the legal framework, but I'm not really sure that reforms to gender pay reporting are going to make a huge amount of difference in themselves, unless they come with a requirement to actually do something to address the gap. So there's a little bit of a disjunct there, and we have to see how the government might intend to deal with that.
Jonathan Rennie: Yes, reporting on its own is simply not going to be enough. I was quite shocked to read that the latest pay gap data revealed that in 2021 women were still only paid 90 pence for every pound earned by a man. And I wonder if you saw the report from the Institute for Fiscal Studies at the end of last year – its findings were really quite stark, but also demonstrate the important role employers have in driving improvements in gender equality. The report actually found that the reality is that there has barely been any change to the gender pay gap in the last twenty-five years after accounting for increased women's education. And that working age women actually do fifty more hours of unpaid work than men each month.
It very much seems that the fork in the road, if we call it that, for women is parenthood. After this point, gaps in employment and hours immediately and substantially increase. The authors have argued that stereotypes are actually the true cause of the gender pay gap. Despite years of policy reforms, the fiscal studies institute has said that there has still been a failure to create coherent and consistent incentives for equal distribution of responsibilities between genders. That's partly at a government level, as we've just discussed with Siobhan, but also the report found that most employers continue to implement inadequate policies that implicitly accept traditional gender norms based on perceptions of women as caregivers, perhaps, and it's these policies that keep society trapped in a bad equilibrium.
Sarah Maddock: So it seems to me that perhaps one of the keys to unlocking this issue is in bringing men into the debate, so that policies which are linked to caregiving are open to both genders. And not only that, but men are empowered to actually take up those opportunities. And I've got a feeling that this is something that would be welcomed by a lot of male employees, so it's not all just about women. Although flexible working is correctly widely touted as being a really important part of supporting women at work, and it is so important that that's available and that it does support women at work, it's only when flexible working to accommodate family life becomes the norm across both genders that I think we are likely to see any real change for women in the workplace, looking back at the other research that you just mentioned, Jonathan.
Jonathan Rennie: Yeah, thanks Sarah. And that leads very neatly onto our next topic, which is what we might describe as the double-edged sword of flexible working. So flexible or agile working has long been considered an enabler of women's professional progression, and before the pandemic there arguably wasn't enough flexibility, if you can remember those days. Then most people worked from home during the pandemic, and a lot of companies relaxed their policies, allowing people to flex around childcare and other caring and mental health and wellbeing commitments. And now some of us seem to maybe be sliding back into the new working patterns. The key message here then is that there's definitely a role for HR to consider the equality issues with flexible working all over again (don't let this opportunity slide by us) and make sure that the HR teams have done all they can to minimise the risks, for example, of discrimination claims and holding women back from progressing in their careers.
Siobhan Fitzgerald: I think there's still risks in this area, and they need to be quite carefully managed. There was a lot of evidence that during the pandemic, even in families where both parents were working from home, it was actually the female partner who took on most responsibility for homeschooling children. And I know you and I certainly remember the horror of those days. And separately from pandemic working, studies have shown that when mothers work from home, they increase their time and activities in the household in a way that fathers do not. And that can obviously affect their ability to commit to certain jobs, achieve promotions and really sometimes at the expense of their own personal wellbeing.
Jonathan Rennie: Thanks, Siobhan. And so, it follows then that requests for flexible working still definitely carry a risk of indirect sex discrimination if they're refused. And of course it might actually be harder to refuse them now if individuals have proven that they've been able to work in this way during the pandemic.
Our final segment is on women's health: definitely something HR and legal teams are spending more time thinking about and an area of increasing risk as the law evolves. The main headline issues at the moment appear to be menopause, menstrual leave and reproductive health.
Starting with the menopause, this is an area where I think it's fair to say, it's been somewhat hidden in the shadows until pretty recently, but it's now being talked about much more openly. I really wanted to draw listeners' attention to a landmark survey, which was published by the Fawcett Society, called ‘Menopause and the workplace’, and we'll provide links to this in the episode notes.
Now the results of the survey were really quite shocking. For example, the report detailed that one in ten women who have worked during the menopause have actually left their job due to their symptoms. There was the suggestion that eight out of ten women said that their employer had not shared information, had not trained staff and had not put in place any kind of menopause absence policy. And then there was the statistic that 44% of women, so nearly half of the women interviewed, said that their ability to work had been affected by the menopause, with 61% of those saying their symptoms have resulted in a loss of motivation, and just over half of them saying that they had lost their confidence.
Siobhan Fitzgerald: And actually, if you look at the symptoms, it's really easy to see why some people might struggle at work. I mean, there's a long list here, but irregular menstrual cycles, anxiety, suffering anger, brain fog, we've probably all heard about that one, but it's then migraines, insomnia, hot flushes, night sweats, bone thinning, increased risk of heart problems. And the mental health side, I think probably as important as the physical side, with suffering from anxiety and panic attacks, depression's very common (unfortunately, going through the menopause or at that age is peak of suicide in women). And also reverse puberty, so hormones from puberty sort of dialling down. So my children are just approaching their teenage years, and I can say that it's a roller coaster of emotions! Well, if you think about women at the menopause age, you're kind of coming down from that, so you can experience very similar types of symptoms. So when you couple all of those, it's not a surprise really that people can find it difficult to cope at work.
Jonathan Rennie: It affects women on average between the ages of 45 and 55, so potentially when they are at the height of their earnings potential, skills, knowledge and experience. It all feeds back into the gender pay gap, of course, and pensions gap issues and potentially even the lack of diversity at a senior level.
Sarah Maddock: Yeah, I think the significance of this issue is really clearly illustrated by the fact that the government has turned its attention to menopause at work now with the House of Commons, Women and Equalities Committee launching an inquiry into this. It closed last September; we're still waiting to hear what the outcome of that is, but the committee has said publicly that it's not ruled out specific legislation to protect people experiencing the menopause. So, for example, that could include things like making it mandatory for employers to put in place a menopause policy, and possibly also introducing the concept of menopause as a standalone protected characteristic under the Equality Act, along the lines of race and disability and sex discrimination.
So at the moment, there's no specific legal protection linked to menopause symptoms, but that doesn't leave those suffering severe symptoms without any protection whatsoever. They would need to bring any claims in relation to those symptoms under existing equalities protections, linked to most likely age, disability and sex. And we've seen this in a recent case actually called Rooney v Leicester City Council. And in that case, the employment appeal tribunal confirmed that, as many of us in the employment law world thought, an employee who was suffering from significant menopausal symptoms could potentially be classed as disabled.
Jonathan Rennie: Just going back to the Fawcett report that we mentioned a couple of times, employers that are wanting to get ahead of the curve might want to look at its recommendations as well as some of the ones that we've covered.
Siobhan Fitzgerald: I think the policy itself is an important means of showing employer commitment to tackling those challenges that we've seen that menopause can create for female employees. But also promoting a corporate culture that supports and empowers women going through the menopause and making it okay for them to be able to discuss their physical and mental symptoms at work. A policy shows you've thought about it. It can be a difficult thing to talk about, we know that and we know that those who haven't experienced it yet, whether male or female, don't know much about it and education is really important.
We heard lots of great ideas about what else workplaces can do. So practical things like quieter working spaces, thinking about temperature or lighting control, provision of fans, access to rest facilities. And also really importantly, signposting where people can go for more information, so perhaps a support helpline or access to GP advice. And lots of private health providers may well have an app these days that will help people who are going through the menopause, and you can link in each day and understand how to deal with certain symptoms. So there's lots of ways that an employer might be able to not just be willing to talk about it but actually offer practical support as well.
Jonathan Rennie: Wondered there, Siobhan, we're not using the language of “reasonable adjustments”, which is the disability label under the Equality Act, but we're almost there, in terms of what you're talking about and how employers should approach this: that they should look at adjustments and try and get cooperation and understand how to build on that.
Siobhan Fitzgerald: Yeah. And the training of line managers and HR teams themselves has a role to play, so you know how to notice the signs of menopause, handle conversations sensitively. And we all know about mental health champions, well, now there's the concept of menopause champions, and you might have some female employees in the workplace who have been through the menopause and would be happy to support or mentor those who are just beginning to experience symptoms. A few other things to think about: gender specific risk assessments, just to think about health and safety and wellbeing, if an employee's going through the menopause. So like I mentioned, that would include things like the fan or access to cold drinking water. Just doing that risk assessment prompts you to think about whether the physical layout of the workplace is ideal.
And then just finally to say that probably the dialogue with your employee is going to be one of the most important things, because not everyone has very severe menopause symptoms but you want to be able to provide the support that they need. So, will a fan be helpful to them? Might actually a relaxation of the dress code policy be better? And another thing that employers might just want to think about is any potential adjustments to performance procedures or sickness absence procedures, so just taking into account the impact for the menopause upon their work or their absence.
Sarah Maddock: And very similar comments apply for menstrual health, another big women's health issue. For some women, it's not an issue at all but for some women, it can be debilitating and difficult to be open and honest about if it starts to have an impact on working life. It's not a debate we are hearing much about in the UK at the moment, but it was intriguing to see that Spain has become the first Western European country to introduce guaranteed time off work for people experiencing severe period pain. They're offering three days off a month, or five days if the pain is really severe. So what that means for Spanish women is that if they're experiencing severe period pain, they don't have to rely on standard sick leave allowance.
And what's interesting from our point of view is that the news in Spain has triggered charities in the UK to start campaigning for more awareness and support around this issue. Having said that, it's a controversial area, as some would argue that it goes against the concept of women being able to engage equally at work with men – something that women have fought long and hard for many years without needing special treatment for coping with periods. That said, on the flip side of the coin, it doesn't seem all that fair that for some women who are struggling each and every month, that they're having to burn through their sick leave allowance so much faster than others without any special provision.
Jonathan Rennie: And I wonder if employers with forward thinking policies start to become a point of differentiation for prospective staff and that we start to see more businesses playing catch up. I also had in mind that for younger women in organisations, that when they see their organisations introducing these policies, they know that they're being well looked after and supported at work. And there's a form of future proofing there in the sense of their health and wellbeing being supported as they develop their careers.
Sarah Maddock: Yeah, I think that's right, Jonathan, it's something that benefits women across the whole range of ages. And just picking up on what you were saying about forward-thinking employers and marking themselves out in the highly competitive job market, another area that some employers are turning their minds to now is reproductive health, and it seems to be a topic that is starting to get more attention. I've noticed that an MP called Nickie Aiken, who's MP for the Cities of London and Westminster, has issued a call for the government to introduce a new right to time off for medical appointments in the early stages of IVF. And that's in a private members’ bill that's due to be heard in the next parliamentary session.
Now, the reason that this might need addressing is that under the current UK legal framework, pregnancy rights for employees who are going through IVF only begin at the very last stage of the process, that's when the fertilised egg is transferred to the women's uterus. However, the process begins several stages before that, and includes hormone treatments, lots of blood tests and scans and women can experience side effects from the process up to the point where the fertilised egg is transferred. But during that process, a woman isn't legally entitled to any time off antenatal appointments because she's not technically pregnant and there's no legal requirement to treat IVF appointments as medical appointments or as sickness.
So there's a gap in provision there. Many workplaces don't offer any time off at all, which forces lots of employees to fall back on using their holiday entitlement. And I think that can be potentially a bit of an issue in the sense that holiday entitlements, as we know from European case law, is meant to enable employees to have a period of rest and relaxation.
Jonathan Rennie: Thanks, Sarah, and thanks for listening everybody. We hope you found it useful. If you like the podcast, you can rate and review it, which helps others to know that it's worth a listen. You can also subscribe or follow us, so you know when our next episode will be available. You can email us feedback and ideas for future episodes at email@example.com. You can also follow and even speak to us on Twitter @TLT_Employment.
The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording, we recommend you seek specific advice for specific cases.
29 June 2022