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Aug 1 • 9 tweets • 5 min read
The Women and Equalities Committee report on 'Menopause and the Workplace' is out: committees.parliament.uk/publications/2…
It's a well-written & researched report with useful information & brings an important issue to the fore, but does it come up with the right proposals?
#ukemplaw
The committee raises concerns that menopause-related discrimination has to be shoehorned into sex, age or disability discrimination protection, & there are difficulties with each. /2
For age & sex discrim, the committee identifies the comparator issue. Unlike pregnancy discrim, where the test is 'unfavourable' rather than 'less favourable' treatment, for menopause-related sex/age discrim you need a comparable (real or hypothetical) man/younger person. /3
For indirect sex discrimination in respect of attendance policy requirements & trigger points, the committee is concerned about employers showing those policies are objectively justified. /4
Concerns re reliance on disability include it being unpalatable to refer to a natural life stage as a disability, potential difficulties for those with intermittent symptoms, the embarrassment of disclosure of records & online publication of judgments & the cost of proof. /5
The committee was also concerned that menopause is intersectional in nature (age & sex) but that the Equality Act doesn't protect against dual discrimination (though a claimant can bring under each individual protected characteristic. /6
The committee was in favour of 2 legislative amendments to the Equality Act: (i) bringing s.14 on dual discrim into force; (ii) creation of a new protected characteristic of menopause, including a duty to provide reasonable adjustments for menopausal employees. /7
On the 1st point, I always go back to @seanjonesqc's blog piece: seanjones11kbw.wordpress.com/2010/09/10/equ…. There's also this similarly argued academic article from @JamesAHand: academia.edu/1136254/_Combi…

On the 2nd point see this from @42BR_Employment @gillcrew 42br.com/latest-news/pa…
#ukemplaw /8
The Government does not appear to favour either suggestion, so it is unlikely there will be any change soon (and unfortunately neither leadership candidate speaks highly of the Equality Act).

What are people's thoughts? Are the proposals worthy or unnecessary?

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More from @JasonBraier

Jason Braier Profile picture
Jul 29
1/ Avid readers of the ILJ are in for a treat when the next issue is released, as the high priests of #ukemplaw @thebigbogg & @MichaelFordQC have written a superb article covering the Art 11 ECHR cases of Foster Carers & Deliveroo, employment status & substitution clauses.
2/ To whet your appetites, some vague clues to highlights. They argue there was a much simpler route to victory for the Foster Carers than looking to Art 11 ECHR, in that in fact foster carer relationships were governed by contract & the earlier case law to the contrary was wrong
3/ They argue the earlier case law (W v Essex) relied too heavily on the fact foster care agreements were governed by statutory obligations - that should only negate the existence of a contract where it leaves no space for the contract to occupy.
Read 22 tweets
Jason Braier Profile picture
Jul 28
1/ Trentside Manor Care v Raphael: EAT finds it's not appropriate for ET to order a party to provide to the other side's lawyers documents over which privilege is claimed so that they can argue whether they are privileged!
Also useful on legal advice privilege & non-lawyers.
2/ R was a registered care nurse at TMC. She made a flexible working request as a result of ill-health (which she considered a reasonable adjustment for disability). It was granted on a trial basis. A couple of weeks later, R was suspended & then dismissed for gross misconduct.
3/ It was R's position that conduct wasn't the real reason for dismissal, but her flexible working request/reasonable adjustment was. She brought claims including unfair dismissal, direct disability discrim & discrim arising from disability.
Read 19 tweets
Jason Braier Profile picture
Jul 27
1/ Arian v The Spitalfields Practice: The EAT wasn't bound by its decision in Pruzhanskaya to find no new time limit for adding a s.103A to a s.98 ERA claim, but rather time limits may be of limited weight in line with Abercrombie et al.
assets.publishing.service.gov.uk/media/62dff920…
#ukemplaw
2/ A was a healthcare assistant at a GP practice. He raised various concerns about their health protocols. As a LiP, he brought 2 claims including an ordinary unfair dismissal claim & a protected disclosure detriment claim, but not a s.103A automatic unfair dismissal claim.
3/ He provided a list of issues a few months later which included as an issue whether his dismissal was connected to the grievance in which he'd raised his protected disclosures, though when the R professionally redrafted the list, it didn't include a s.103A claim.
Read 12 tweets
Jason Braier Profile picture
Jul 26
1/ Scottish Federation of Housing Associations v Jones: The exception to the 2 years qualified service requirement under s.108(4) ERA concerns dismissal for political opinions/affiliations & not mere breach of a political neutrality clause.
assets.publishing.service.gov.uk/media/62dad6c0…
#ukemplaw
2/ J was head of membership & policy for the SFHA. Her employment contract contained a 'Political Activity' clause preventing her from having a formal role of a political nature.
3/ J told her employer she wished to stand for Scottish Labour at the next general election. The SFHA advised that it didn't consent to this. J then withdrew her candidature. At a meeting, the CEO expressed concern J had sought permission to stand. J was subsequently dismissed.
Read 12 tweets
Jason Braier Profile picture
Jul 20
1/ Harpur Trust v Brazel: Sup Ct dismisses the appeal, holding part-year workers on year-round contracts are entitled to 5.6 weeks' annual leave per year, with a week's pay determined by s.224 ERA, rather than 12.07% of earnings in the year.
supremecourt.uk/cases/docs/uks…
#ukemplaw
2/ This case is concerned with those who work for varying hours, only working during certain weeks, but under a contract continuing throughout the year.

The question is whether leave for them should be counted proportionately or by ignoring that there are weeks they don't work.
3/ B teaches the saxophone & clarinet as a visiting music teacher at a school run by HT & is accepted to be a worker in that capacity. Her hours vary dependent on the number of pupils needing her music lessons, with B normally working 10-15 hours a week during term time.
Read 25 tweets
Jason Braier Profile picture
Jul 18
1/ FDA v Bhardwaj: EAT dismisses appeal against refusal of costs orders (& cross-appeal against making of 1), & derides issue-by-issue costs claims & discourages pernickety costs appeals.
assets.publishing.service.gov.uk/media/62cea659…
#ukemplaw
2/ This is lengthy litigation by B against her former union & 5 of its members. She started the litigation in 2008, lost it & then lost at the EAT & CA before the Supreme Court refused permission to appeal. The FDA applied for costs & partially succeeded. Both sides appealed.
3/ The EAT (Griffiths J) started by bemoaning how great the resources taken up by the case, & how litigation taking up the most resources seem to create their own chain reaction of further & more strenuous fighting. (It was a case in which FDA raised 50 points on costs alone!)
Read 11 tweets

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