Employment To-The-Point

Following the recent celebration of International Women's Day #Embrace Equity and with the deadline for gender pay gap reporting looming, we take a look at five key areas for change in women's equality and equity in the workplace, the enhancement of certain rights and the potential erosion of others.

The Gives:

On a positive note, progress is certainly being made to create greater equity in the workplace.  

1. Women's employment rights and protections

A number of new protections and enhancements to women's employment rights promoting fairness in the workplace are currently making their way through Parliament e.g., providing for extended neonatal care leave and introducing unpaid carer's leave both of which will give women additional rights in the workplace.  Among them is the proposal to give expectant mothers and new parents enhanced redundancy protection, effectively doubling the current protection, to provide women with greater redress and to address the difficulties faced by some women being forced out of the workplace on their return from maternity leave.  

There is also the proposal to introduce changes to the right to request flexible working.  While the proposal is to remove a length of service requirement and make it a day one right, it does not include many of the reforms that critics were hoping for and the eight business reasons for rejecting a request will remain, making it relatively easy for an employer to turn down a request, albeit with a new requirement to consult to explore suitable alternative options.

Sexual harassment remains a major issue for society and the workplace, but there are developments here too.  The UK is a signatory to the first international treaty to recognise everyone's right to a workplace free from violence and harassment which has just come into force.  Proposals to introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment of employees in the workplace and to re-introduce liability for harassment by third parties, e.g. customers, are currently making their way through Parliament. It has been reported that government will support the Equality and Human Rights Commission in creating a statutory code of practice on sexual harassment and harassment in the workplace which will be introduced as the new legislation comes into force.  The Government Equalities Office will also produce guidance to be published in due course.

The Takes:

There is still work to be done though and we need to be wary of the potential erosion of rights which will have a disproportionate effect on women.

2. Retained EU Law Reforms and Revocation

The government proposal for the expiry of EU-derived secondary legislation and retained direct EU legislation on 31 December 2023 unless expressly preserved and incorporated into domestic law in time has the potential to have a significant impact on employment rights in the UK.  The government has not yet given an indication of which rights and protections it wishes to keep or revoke or whether it intends to take the opportunity to reform the law on certain key issues.  While the rights and protections for discrimination are largely unaffected, as they are derived from primary legislation under the Equality Act 2010, there is still cause for concern that women's employment rights could be under threat.  Uncertainty remains over regulations which govern rights for part time workers, fixed term workers and agency workers where women make up the majority of the workforce. 

3. Gender Pay Gap Reporting

The end of March/beginning of April sees the annual deadline for gender pay gap reporting.  There remains a large difference in the gender pay between employees over 40 and under 40 years as well as generally among higher earners between genders and recent analysis by the TUC shows that women work for free for 54 days due to the gender pay gap, so there is still much work to do.  April 2022 was the fifth anniversary of gender pay gap reporting in the UK, the point at which government was expected to review the regulations.  That review is yet to be published.  

Last October the government announced that it was changing the threshold for categorising small businesses, extending it to those with up to 500 employees.  While not definitive, government adopts an assumption when developing policy that small businesses should be exempt from certain regulations, such as reporting requirements, although this may be overridden in appropriate cases.  It proposes that the new threshold will apply to new regulations under development and to those under current and future review.  This could include the gender pay gap reporting regulations which would mean that fewer businesses would need to meet the requirements, potentially eroding the work that has been done in this area.  

The give and take:

4. Fertility and Menopause in the Workplace

More businesses are looking at ways to support D, E &I in the workplace.  Many large UK employers including NatWest Group and Metro Bank, the Co-op and Channel 4 have signed the Fertility Workplace Pledge, which is designed to benefit individuals and couples going through fertility treatment.  The pledge was launched by Nickie Aiken MP in November 2022 and is part of her campaign to provide statutory time off for employees going through fertility treatment (see our article here).

Government has recently rejected many of the recommendations in the House of Commons Women and Equalities Committee's (WEC) report, Menopause and the Workplace, calling for the commencement of the combined discrimination provision in the Equality Act 2010 and for a consultation on making menopause a protected characteristic.  This is consistent with its response to a separate call for legislative reforms from the WEC in July 2022.  In other developments, the Labour party has announced plans which it will bring in if in government, requiring employers with over 250 employees to publish and implement a "menopause action plan" setting out how they are supporting employees experiencing menopausal symptoms.  In addition, the party would publish new government guidance advising employers on how best to support their employees.

The blind spot:

5. Pensions Equality

A recent report highlights a general lack of awareness among employers of the gender pensions gap and how this contributes to gender inequalities more broadly.  Analysing women's finances through the lens of the workplace has shown that life events including motherhood, caring responsibilities, the menopause and divorce can all disproportionately affect women's earnings and pension contributions.  Many women do not receive enough information about the impact of such events on their pensions and 55% said they would like more information about their workplace pension from their employer.  One of the key recommendations of the report is for government to introduce a legal duty for employers to inform staff on the impact changes to their working hours may have on their pension.  

Katherine Moore

Katherine Moore

Senior Knowledge Lawyer, Employment

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