Employment and Service Guide 2022 This is an overview of equality law, summarising the main concepts and the role of the Equality and Human Rights Commission. It covers: – The Equality Act 2010 -its scope and application for redress The Nine Protected Characteristics Direct and Indirect Discrimination Exemptions -Occupational Qualifications Positive Action -Not Positive Discrimination Discrimination by Association and Discrimination by Perception Discrimination on grounds of Disability and Reasonable Adjustments Harassment and Victimisation The work of the Equality and Human Rights Commission (EHRC) The Public Sector Equality Duty Equality Impact Assessments Vicarious Liability Background Equality laws are changing all the time. They go back to the Community Relations Act 1965 and the 1975 Race Relations Act & Sex Discrimination Act, followed by the Disability Discrimination Act 1995. And European directives on age, disability, gender reassignment, race & belief, religion, sex, sexual orientation as well as parental rights. Despite Brexit, all of these are absorbed into UK law. The Equality Act captures all these laws. At the time of writing the government plans to introduce new laws on: – The Menopause Sexual Harassment Conversion Therapy Carers Leave In Spring 2022 there are, also, prevailing discussions and controversies around Misogyny -the “Me Too Movement” Black Lives Matter Transgender Rights Social Media -Cyber Bullying and Stalking It is vitally important that everyone Directors, Operational Managers, Unions/Employee Reps and HR Teams and staff alike, keep up to date with everything on the equality and diversity agenda becausewe all have rights and responsibilitiesunder the various laws as employers, members of staff and as customers in receipt of goods, facilities, and services. ______________________________________________________________ 1. The Equality Act 2010- Its scope and applications for redress The Equality Act 2010 consolidates most equality law into one Act. It prohibits conduct and creates duties in relation to ‘protected characteristics. There are nine protected characteristics ranging from age through to sexual orientation. The Act prohibits direct and indirect discrimination, and harassment and victimisation. It also prohibits discrimination in relation to something arising from a person’s disability and creates a duty to make reasonable adjustments for disabled people. The Act applies in various scenarios, including at work, in education and in relation to the provision of goods, facilities and services as well as public functions. Individuals seeking redress under the Equality Act on the grounds of unlawful discrimination can make applications to an Employment Tribunal in respect of the workplace or the County Court for service delivery matters. Successful cases will result in compensation being paid to the applicant taking account of: Loss of Earnings Injury to Health Injury to Feelings Every case turns on its own merits and there is no upper limit on the compensation that can be paid. Time limits for pursuing an employment claim and/or a service delivery claim are different. An employment claim must be lodged within three months of the date of the discriminatory act. A service delivery claim must be lodged within six months of the date of the discriminatory act. Public authorities are subject to a Public Sector Equality Duty. The Duty means they must ‘have due regard’ to equality considerations when exercising public functions. Companies and private organisations which work with the public sector will often be asked to show how they are meeting the public sector equality duty in terms of whom they employ and serve. The Equality Act and unlawful acts resulting from its contravention can also trigger links/referrals to the criminal law notably: Incitement to hatred – “hate crimes” Protection from Harassment Act Malicious Communications Act Sexual Offences Prosecutions and subsequent convictions under these laws can carry heavy fines and/or substantial custodial sentences. 2. Nine Protected Characteristics The Equality Act prohibits certain types of conduct and creates duties in relation to nine ‘protected characteristics. The nine protected characteristics are: – Age:-which is defined as follows: – (a)a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group. (b)a reference to persons who share a protected characteristic is a reference to persons of the same age group. (c) reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages. Disability:–which is defined as follows: – A person has a disability if s/he has, or has had, a physical or mental impairment which has a substantial and long-term adverse effect on their ability to conduct normal day-to-day activities. It includes recurring and progressive conditions (i.e., the adverse effect will arise in future because of the acquired condition) and certain illnesses and conditions such as cancer and HIV. Long Covid may emerge through caselaw as meeting this definition. Gender Reassignment:– which is defined as follows: – A person who is proposing to undergo, is undergoing, or has undergone gender reassignment (the process of changing physiological or other attributes of sex, therefore changing from male to female, or female to male to match the gender identity). Marriage and Civil Partnership:– which is defined as follows: A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner. A married person is a person who is legally married under the Matrimonial Causes Act 1973. A civil partner is someone who has been registered as a civil partner under the Civil Partnership Act 2004. The provision is asymmetrical in nature since it only affords protection to people who are married or civil partners but not single people. It excludes people who have never married, divorcees, fiancées, “co habiteés” widows and widowers. Pregnancy and maternity:– which is defined as follows: Maternity refers to the period of 26 weeks after the birth (including still births), which reflects the period of a woman’s Ordinary Maternity Leave entitlement in the employment context. In employment, it also covers (where eligible) the period up to the end of her Additional Maternity Leave. It is unlawful to treat a woman unfavourable …

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We are aware that some organisations have not still not reacted to the Employment Appeal Tribunal Rulings on holiday pay. Additionally some organisations appear to be restricting back dated pay increases to contracted hours worked. Minimum 5.6 weeks Holiday Pay Whilst the outcome of the The Harpur Trust v Brazel appeal to the Supreme court remains pending employers should give good consideration to following the earlier employment appeal tribunal rulings notably; that holiday pay for those working less than 52 weeks a year are entitled to the same weekly holiday entitlement as those working full time. A minimum of 5.6 weeks applies in both cases. Holiday Pay based on Hours worked There are numerous Employment Tribunal rulings that make it clear that holiday pay for those on zero or variable hour contracts or those who work regular overtime must have a minimum of 4 weeks their holiday pay per year paid based on the average hours worked over the preceding 52 weeks. There is no ruling on what constitutes “regular overtime” but given the negative goodwill that develops when staff feel they are being unfairly treated employers are advised to be generous. Back dated pay increases when pay increases are awarded retrospectively employers need to take care that they do not discriminate. Restricting pay increases to contracted hours, for example, may lead to breaches of the minimum wage regulations and/or part time workers regulations. Image Credit: A wordcloud featuring “Salary” by EpicTop10 (note: the author EpicTop10 and their products are not related to nor endorsed by Concrew training)

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Female Menopause, employment law and reasonable adjustments Operational Managers and HR teams need to understand the female menopause, its symptoms, impact and what reasonable adjustments should be considered to support those affected. Delegates on our employment law and equality courses often ask about it so we thought it useful to release this short briefing document so support a wider audience. 1. Introduction The menopause is a natural event in most women’s lives during which they stop having periods and experience hormonal changes such as a decrease in oestrogen levels. It usually occurs between the ages of 45 and 55 and typically lasts between four and eight years. However, each woman’s experience will differ, and menopausal symptoms can occasionally begin before the age of 40. Perimenopause, or menopause transition, begins several years before menopause. Women may start to experience menopausal symptoms during the final two years of perimenopause. The “male menopause” (sometimes called the Andropause) is an unhelpful but often used term. Males may, experience symptoms that appear outwardly similar to those experienced by women and at a similar age BUT they are not related to a drop in testosterone levels so not technically a menopause. The symptoms can interfere with everyday life and happiness, so it is important tofind the underlying cause and work out what can be done to resolve it.” This briefing focusses on the female menopause but in the interests of balance more detail regarding the male Andropause (menopause as it is often, albeit incorrectly, called) is covered in section 9 This briefing note considers the female menopause: – Symptoms Suggested Internal and External Support Ideas Reasonable Adjustments that might be needed Laws related to the Menopause Discrimination and Equality issues GDPR and Data Protection Landmark Cases 2. Symptoms can include Hot flushes and night sweats Dizziness and fatigue. Memory loss. Depression and headaches. Recurrent urinary tract infections. Joint stiffness, aches, and pains. Reduced concentration; and heavy periods. Each of these symptoms can affect an employee’s comfort and performance at work. All businesses and organisations have a duty to provide a safe working environment for all employees and therefore will usually commit to ensuring that adjustments and additional support are available to those experiencing menopausal symptoms. 3. Suggested Internal and External Support The aim should be to facilitate an open, understanding working environment. All employees can be asked to attend a training session on the menopause/health issues including the menopause to increase awareness. Managers will benefit from attend this session as well as additional training to help provide effective to support to employees who are going through the menopause. Employees are generally encouraged to inform their line manager that they are experiencing menopausal symptoms at an early stage to ensure that symptoms are treated as an ongoing health issue rather than as individual instances of ill health. Early notification will also help line managers to determine the most appropriate course of action to support an employee’s individual needs. Employees who do not wish to discuss the issue with their direct line manager may find it helpful to have an initial discussion with a trusted colleague or another manager instead. They can also raise the issue with HR/occupational health if they need support. Many organisations signpost external sources of help and support for employees and managers, including information on: Menopause matters, which provides information about the menopause, menopausal symptoms, and treatment options. the Daisy Network charity, which provides support for women experiencing premature menopause or premature ovarian insufficiency; and the Menopause Café, which provides information about events where strangers gather to eat cake, drink tea, and discuss the menopause On a broader but related scale Hen-pecked is one of the UK’s largest, fastest-growing websites for women, They say their mission is give women a place to have their say, sparking discussion, promoting healthy debate and, they hope, bringing about positive change. The have a big focus on the Menopause. ACAS has also publishedguidanceto help employers and managers support staff who are affected by menopause symptoms at work. Since its original publication in October 2019, it has received approximately 85,000 unique page views. 4. Reasonable adjustments that might be needed Temperature control An organisation should strive to achieve a comfortable working temperature for employees, allowing flexibility within its dress code where reasonable. Air conditioning systems, chilled water and desk fans should be provided as appropriate Flexible working Most organisations recognise that difficulty sleeping is a common symptom of the menopause. To reflect this, as well as the impact of other common symptoms, companies should aim to facilitate flexible working wherever possible. Requests for flexible working could include asking for: A change to the pattern of hours worked. Permission to perform work from home. A reduction in working hours; or More frequent breaks. Employees should discuss such requests with their line manager/HR. Depending on the circumstances, requests are usually approved on a permanent or temporary basis. 5.Law relating to the Menopause Health and Safety at Work etc Act 1974 Employment Rights Act 1996 Equality Act 2010 Data Protection Act 2018 Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) Flexible Working Regulations 2014 (SI 2014/1398) General Data Protection Regulation (2016/679 EU) 6.Discrimination and Equality Issues The Government has indicated it is sympathetic to amending the Equality Act in order to take account of the legal case authorities and social awareness of the detriments caused to women with menopausal symptoms. The Equality Act covers the situation indirectly through the Protected Characteristic of Disability, but the thinking is that the “Menopause” in its own right should become a 10th Protected Characteristic in that statute. And this has implications for GDPR and specifically processing Sensitive Data. The menopause can, depending on the severity of the symptoms, amount to a disability for the purposes of the Equality Act 2010. Employers must ensure that they do not treat employees less favourably than others as a result of a disability and must also make reasonable adjustments as required to ensure that disabled employees …

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A raft of changes to employment law come into effect in April 2022 and more still are in the pipeline. It is important that HR teams, Payroll personnel and operational managers are aware of the changes. Gender Pay Gap Figures – 31 March and 05 April 2022 Organisations have 12 months to publish their gender pay gap figures from the relevant snapshot date (31 March for the public sector and 5 April for the private and voluntary sectors). This means that the next gender pay gap reporting deadline is 30 March 2022 for public-sector employers and 4 April 2022 for private-sector and voluntary-sector employers. Our training on pay gap reporting courses start at just £285+vat for 14 people. National Minimum and Living Wage Increases 01 April 2022 Rates for the national minimum wage will increase on 1 April 2022. The hourly rate of the minimum wage will increase from: £8.91 to £9.50 for workers aged 23 and over (the national living wage) £8.36 to £9.18 for workers aged 21 or 22 £6.56 to £6.83 for workers aged 18 to 20 £4.62 to £4.81 for workers aged under 18 who are no longer of compulsory school age, £4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship. Employers should check their pay rates against the forthcoming minimum wage rates and ensure that, where necessary, they increase remuneration for the first pay reference period beginning on or after 1 April 2022 Review of Temporary Guidance on “Right to Work Checks” – 05 April 2022 Since 30 March 2020, temporary guidance on right-to-work checks has been in place to allow employers to conduct checks without seeing the individual face to face. Checks can be carried out via video and scanned, or photo versions of the original required documents can be used. Employers have a defence against a civil penalty if they complete a right-to-work check in accordance with the temporary adjustments. As long as employers followed the temporary guidance, they are not expected to carry out face-to-face checks retrospectively. However, these temporary measures are due to last only until 5 April 2022. Employers should look out for new guidance on right-to-work checks that will apply from 6 April 2022 (although it is possible that the temporary guidance will be extended) Readers should also be aware, that leaving the above aside, the Government guidance on “right to work checks” was updated on 17 January 2022 Statutory Family Related Pay and Sick Pay Increases- 03/06 April 2022 The rate of statutory maternity, adoption, paternity, shared parental and parental bereavement pay will increase to £156.66, up from £151.97. The increase normally takes effect on the first Sunday in April, which in 2022 is 3 April. The rate for statutory sick pay will also rise on 6 April 2022. The new rate will be £99.35, up from £96.35. It is up to employers to make sure that staff on maternity, paternity, adoption, shared parental and parental bereavement leave, and staff on sick leave, are paid these statutory minimum rates. Employers also need to review their policies and documents that mention the rates, such as their maternity policies and sickness absence procedures New Limits on Statutory Redundancy Pay Calculations- 06 April 2022 New limits on employment statutory redundancy pay will come into force on 6 April 2022. Employers that dismiss employees for redundancy must pay those with two years’ service an amount based on the employee’s weekly pay, length of service and age. The weekly pay is subject to a maximum amount (£544 from 6 April 2021). The new amount will be confirmed in the draft Employment Rights (Increase of Limits) Order 2022, which should be published some time in February. Employers should ensure that calculations for statutory redundancy payments are made on the basis of this new maximum amount for redundancy dismissals on or after 6 April 2022 Changes in the pipeline for 2022/23 changes to the right to request flexible working procedures the introduction of statutory carers’ leave the introduction of neonatal leave and pay extended redundancy protections during pregnancy and maternity leave reforms to the requirement to produce modern slavery statements reforms to sexual harassment laws amendments to the rules on settlement agreements new provisions to give workers the right to request a more predictable and stable contractual working pattern new rules to ensure that tips are passed to workers in full. Image Credit: The Law by smlp.co.uk used under CC BY

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