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What will happen to the gender pay gap?

On International Women’s Day, Senior Associate, Clare Brereton considers where things stand with gender pay gap reporting in the wake of the Covid-19 pandemic and what steps employers can take to advance pay equality within their organisation.

One of the many things cancelled in 2020 due to the Covid-19 pandemic was the requirement for large employers to report their gender pay gap data. By suspending enforcement action for the year 2019/2020, the Equality and Human Rights Commission (EHRC) effectively told employers that they did not need to report their figures. While the reporting requirements have been re-introduced in 2021, the deadline for reporting data has been postponed to 5 October 2021.

The gender pay gap was not caused by Covid-19, but with it being widely reported that women in the workplace have been disproportionately affected by the pandemic, the danger is that the gap could widen as a result. Suspending enforcement action for a whole year, and then delaying the deadline for reporting in the following year, certainly gives the impression that this issue does not need to be a priority for employers. This is not going to help close the gender pay gap.

Further, the 2020/2021 data will, in many cases, be affected by the high number of employees who were placed on furlough leave. While furloughed employees do need to be counted when determining whether an employer meets the 250-employee threshold for reporting, furloughed employees should be excluded from the calculation if their salary wasn’t topped up to full pay by the employer. This is because the gender pay gap and salary quartile bands are calculated based on the full pay of relevant employees. Accordingly, the 2020/2021 data may not accurately reveal the true gender pay gap.

One of the barriers to closing the gender pay gap is the lack of information on pay. In many instances, women do not know that they are being paid less than their male counterparts. This makes it difficult for women to challenge inequality on an individual level. Lockdown has also had the effect of isolating the workforce, meaning that women are less able to band together and mount a group challenge. Replicating the challenge to pay practices made by the Dagenham Ford factory workers in 1968 seems impossible in this climate.

This point has not gone unnoticed and the Labour MP Stella Creasy has introduced a private members bill, the Equal Pay (Information and Claims) Bill. The Bill “seeks to break the culture of discrimination and the culture of secrecy that causes it” by giving employees, amongst other things, the right to request pay data of a comparator. Whilst it is relatively uncommon for private members bills to become law, this one has been drafted by a panel of legal and human resources experts and has cross party support. The debate for the second reading has yet to be announced, but the hope of those who support it is that it will lead to the pay transparency that is needed if the UK’s gender pay gap is finally to be closed for good.

In the meantime, there are three key steps that employers can take to accelerate closure of the gender pay gap:

• First, demonstrate that closing the gender pay gap remains a priority by meeting the original April deadline to report the data. This sends a very clear message that despite the other challenges facing the organisation, this remains an important issue.
• Second, when reporting data, voluntarily include data relating to employees who have been furloughed. This will give a true picture of the employer’s gender pay gap and will enable genuine year-on-year comparisons to be carried out. If this is not done, organisations will report two years of incomplete and/or inaccurate data, which will hinder one of the key benefits of annual reporting, namely, to see where progress is being made and where more work needs to be done.
• Third, analyse the effectiveness of the measures already in place to reduce the gender pay gap, and consider whether they should be continued, adapted or replaced. This is incredibly important as there is no “one size fits all” strategy. As an organisation changes, so too should its equality and diversity strategy. Given how lack of transparency helps perpetuate a gender pay gap, an employer could take immediate action to make their pay policies more transparent. In summer 2021 almost every employer in the UK will need to re-evaluate its working practices as the country comes out of lockdown, so this is the prime time to assess how they can work to close the gender pay gap.

If you would like to discuss gender pay gap reporting or other pay equality issues please contact Clare Brereton (claretaylor@bdbf.co.uk) or your usual BDBF contact.

 

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International Women’s Day 2021

#ChooseToChallenge

Today is International Women’s Day.  All over the world organisations and communities are gearing up to celebrate women’s achievements and rally for equality.

The goal of International Women’s Day is to bring attention to the social, political, economic, and cultural issues that women face, and to advocate for the advancement of women within all those areas.  Organisers state: “Through purposeful collaboration, we can help women advance and unleash the limitless potential offered to economies the world over.” 

How it all began

“My own sex, I hope, will excuse me, if I treat them like rational creatures, instead of flattering their fascinating graces, and viewing them as if they were in a state of perpetual childhood, unable to stand alone” – Mary Wollstonecraft

When we think of the Women’s Rights Movement, our minds visualise the suffragette marches and the second wave of feminism which took place, mainly in the United States, during the 1960s and 70s.  However, one of the first campaigners for women’s rights Christine de Pizan, a poet and author at the court of King Charles VI of France and several French dukes.  She wrote The City of Ladies in 1402, a book which celebrated famous women throughout history and explored themes such as the criminality of rape, the natural affinity in women to learn, and their talent for government.  The City of Ladies is still considered to be one of the pioneering feminist texts.

In the UK, the modern women’s rights movement began with Mary Wollstonecraft (1759-1797) and the publication of her ground-breaking book Vindication on the Rights of Women. 

International Women’s Day was first celebrated in 1911 during the first feminist wave (circa 1880-1920) where a million men and women rallied in support of women’s rights.  Originally called International Working Women’s Day, over a million men and women attended rallies in Denmark, Germany, Switzerland, and Austria. In 1922, the first female solicitor was admitted and the first female barrister called to the bar.

In 1977, the United Nations got behind International Women’s Day, declaring it a day “to reflect on progress made, to call for change and to celebrate acts of courage and determination by ordinary women who have played an extraordinary role in the history of women’s rights.”

The 2021 International Women’s Day Theme

The theme for International Women’s Day this year is #ChooseToChallenge.  The official website states:

“A challenged world is an alert world. Individually, we’re all responsible for our own thoughts and actions – all day, every day.

We can all choose to challenge and call out gender bias and inequality. We can all choose to seek out and celebrate women’s achievements. Collectively, we can all help create an inclusive world.

From challenge comes change, so let’s all choose to challenge.”

Organisers are asking people to show their support by striking the Choose To Challenge pose and sharing images on social media using #ChooseToChallenge #IWD2021.

Get Involved

The Coronavirus pandemic has compounded a longstanding problem: women around the world often struggle to fully participate in economic and public life.  A recent study showed women, on average, enjoy only three-quarters of the legal rights men have, and they suffer from pronounced disparities regarding pay and accommodations for parenthood.  The picture is even bleaker in developing and patriarchal countries. 

There has been a significant rise in cases of domestic abuse, and the impact of the pandemic on women’s mental health and employment cannot be denied. Statistics show that women were more likely to work in a sector which has been shut down by the pandemic, and that mothers were 1.5 times more likely than fathers to have lost their job since lockdown started. For women who continued to work during lockdown, there has been a significant increase in time spent (based on hours per day) doing housework or caring for children, with paid working hours being almost double for men in a working day compared to women.

During these unprecedented times, there are many ways we can show our support:

• make donations, or volunteer your time to women’s organisations and charities;
• become a mentor for young women;
• launch initiatives within the workplace to raise awareness and provide a safe platform for women’s voices to be heard;
• implement flexible working arrangements;
• call out stereotypes and gender bias;
• celebrate women’s achievements.

Looking back through history, it is great to see the positive developments that have been made. International Women’s Day is a celebration of triumphs, but also a reminder that there is still much work to be done to achieve fairness and equality for all.

We need to work together to highlight areas where girls and women still face inequality and danger, and actively challenge gender-based stereotypes, bias and inequality.

Human rights are women’s rights and women’s rights are human rights – Hillary Clinton

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In celebration of International Women’s Day, Senior Associate, Emily Plosker examines one of the key employment rights afforded to women on maternity leave and looks at proposals to improve the position of pregnant women and new mothers in the workplace.

In our practice we often hear women start their stories with “when I announced my pregnancy, I noticed…” or “when I returned from maternity leave…” or worse “I am on maternity leave and my role is being made redundant”.

In March 2016, the Department for Business, Innovation and Skills and the Equality and Human Rights Commission report into pregnancy and maternity discrimination certainly painted a bleak picture for women in the workplace. The report found that one in nine mothers reported being subjected to such poor treatment that they felt they had to leave their jobs, being singled out for redundancy or just being dismissed where other colleagues were not. The survey research suggests that the redundancy rate among mothers at some point during pregnancy, maternity leave or on return from maternity leave is considerably greater than the redundancy rate among female employees as a whole. When one scales up these findings and applies them to the UK, it could mean as many as 54,000 mothers are subjected to potentially discriminatory treatment at work each year. What is more depressing is that only 1% of victims take legal action. The survey research suggests that redundancy rate among mothers at some point during pregnancy, maternity leave or on return from maternity leave is considerably greater than the redundancy rate among female employees as a whole with 11% saying they felt forced to leave their job.

These stark statistics have only been exacerbated by the pandemic, where numerous pieces of research demonstrate the disproportionate impact it has had on women in the workplace across a variety of areas (for example a disproportionate number of women have been placed on furlough, made redundant and/or have had to reduce hours or take unpaid parental leave due to childcare commitments, which will impact the gender pay gap in years to come).

Announcing your pregnancy and preparing to go on maternity leave can be daunting experiences, particularly if your workplace has a bad track record in its treatment of working parents. It is for this reason that there is protective legislation in place for pregnant women and those on maternity leave to make sure that their jobs are secure on return to work.

The current position under the Maternity and Parental Leave Regulations

The right which this article is going to focus on is Regulation 10 under the Maternity and Parental Leave etc. Regulations 1999 (or the MPL Regs for short).

Regulation 10 grants women on maternity leave additional protection in the event that their role is placed at risk of redundancy (however, this right does not apply before maternity leave starts or after it ends).  More specifically, if an employee’s role is put at risk of redundancy while on maternity leave, the employee is entitled to be offered “suitable alternative employment”. This duty extends beyond merely offering the opportunity to apply for a role – the role must be offered unequivocally. Crucially, an employee on maternity leave is given priority ahead of other employees who have been put at risk of redundancy but are not on maternity leave – in essence she gets “first dibs.” 

What is suitable alternative employment?

For a role to be “suitable” it needs to be: (i) suitable and appropriate for the employee to do in the circumstances; and (ii) on terms which are not substantially less favourable. Both these requirements must be considered together rather than as a sequential check list.

A dispute often arises as to what is or isn’t deemed “suitable”, which sadly can be driven by whether the employer actually wants the employee on maternity leave to return to work.

The factors that are usually taken into account when deciding whether a position is “suitable” include the role itself, the employee’s experience, geographical location and whether it will increase travel time or childcare costs.

Whether a role is suitable is determined from the point of view of an objective employer – not from the employee’s perspective. However, in practical terms it is often difficult for employers to reach a fair conclusion unless they consult with the employee.  It’s at this stage (assuming that the employee on maternity leave has been made aware of the redundancy and given an opportunity to engage in the process – which is not always the case) that an employee will need to consider how flexible they are to other options and make the employer aware of this.  Doing this may make it more difficult for the employer to deem a job unsuitable. Equally, no one wants to be shunted into a role which really is unsuitable and so it’s important to be as vocal as possible if the role proposed is not, in fact, suitable.

Failure to offer suitable alternative employment

If an employer fails to offer suitable alternative employment (either entirely or offers it to an employee who is not on maternity leave) which results in the employee being made redundant, the dismissal will be automatically unfair.

If, however, there is no suitable alternative employment available the employee’s employment (and maternity leave) will come to an end by reason of redundancy. The employer is still required to consult with the employee about the redundancy and this may include collective consultation depending on the numbers of redundancies involved.  The employer is also required to give notice (or pay in lieu of notice).

It is worth remembering that an employer’s duty to offer suitable alternative employment continues until such a time as the dismissal takes effect. As such, even when an employee on maternity leave is given notice of termination by reason of redundancy, if a suitable alternative vacancy becomes available during her notice period, the “first dibs” rule afforded by Regulation 10 continues to apply.

Even if a suitable alternative vacancy is not available, an employee may still have a separate right of action for ordinary unfair dismissal or discrimination on the grounds of sex/maternity/pregnancy. This might arise where the redundancy is a sham, if a fair procedure was not followed (for example, there was no consultation or the selection exercise was not objective), or the decision to dismiss was linked to the employee’s pregnancy, maternity leave or sex. With this in mind, it is vital that an employee on maternity leave engages with the consultation process and interrogates the employer’s decisions as much as possible – not an easy feat when sleep-deprived and juggling a baby.

Proposals for the future

There are concerns that some employers wait for women to return from maternity leave before announcing redundancies in order to avoid the Regulation 10 rights from being triggered. It is for this reason that in January 2019, the Department for Business, Energy and Industrial Strategy consulted about extending the protection afforded under Regulation 10 to apply from the point the employee notifies the employer that she is pregnant until 6 months after maternity leave has ended. The Government has since committed to introduce these changes, however, to date, no legislation has been brought forward.

In the meantime, Maria Miller MP proposed the Pregnancy and Maternity Redundancy Protection Bill in May 2019, with far more radical suggested solutions. The Bill failed to progress in May 2019 and was subsequently reintroduced in July 2020.  It is due its second reading on 12 March 2021 – progress has certainly been slow.

One of the proposed changes is that it will be automatically unfair for an employer to dismiss an employee by reason of redundancy if the dismissal occurs either during pregnancy, maternity leave or up to 6 months on return from maternity (the model adopted in Germany). This would not apply where the redundancy amounts to a business closure or a cessation of work in that area.

It is likely that the German model will be viewed as too radical, with the Government sticking to its original plan of extending Regulation 10 protection, which many argue, does not go far enough.

Concerns have also been expressed that introducing an automatic unfair dismissal right for pregnant women and maternity leavers/returners, would elevate maternity leave above other forms of parental leave. A simple solution would be to extend the protection to all forms of parental leave. But perhaps a more pragmatic approach would be to look at the statistics which identify consistent unfair treatment experienced by pregnant women and those on or returning from maternity leave. It cannot be that legislation should not change on the (unfounded) basis that it may promote one type of parental protection over another – progress is never made if we stick to the status quo. Indeed, whilst this proposed legislation may, on the face of it, only protect pregnant women and those on or returning from maternity leave, if that protection subsequently assists in altering stereotypical and outdated perceptions of women in the workplace, then that can only be a good thing for everyone.

If you would like to discuss how your organisation can support staff on maternity leave, please contact Emily Plosker (emilyplosker@bdbf.co.uk) or your usual BDBF contact.

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Serious about equality at work? Then it’s time to look after menopausal women.

International Women’s Day on 8 March 2021 puts the spotlight on equality for women, including in the workplace.  By 2022, one in every six British workers will be a woman aged 50 or over – a woman very likely to be on her journey through the menopause.  Given that this phase of a woman’s life can be physically and emotionally turbulent, what should employers be doing to support employees to remain well, effective and happy at work?

What is the menopause, perimenopause and post-menopause?

Most people know that the menopause is the natural change experienced by women relating to the stopping of the menstrual cycle for a period of a year or more.  The menopause typically occurs between 45 to 55 years of age, but it can occur earlier.  In the UK, the average age for a woman to reach the menopause is 51 years of age.  What’s perhaps less well known is that in the years leading up to the menopause, a woman’s body is already starting to change – this phase is known as the perimenopause.  The perimenopause typically starts four or five years before the menopause itself.  

Many women experience the perimenopause and menopause as a difficult and stressful time in their lives and it is common to suffer from a variety of debilitating symptoms.   In addition, most women continue to experience these symptoms for up to four years after their menopause – this phase is known as the post-menopause.  Therefore, an average woman’s menopause journey will span a ten-year period, beginning at around 46 years of age and ending at around 55 years of age.

What are the symptoms of the menopause?

The symptoms of the perimenopause, the menopause and the post-menopause are the same, although the range and severity of symptoms suffered will vary for each individual and may change over time.  The TUC reports that around 80% of women experience noticeable symptoms and around a third of women find them difficult to deal with on a day-to-day basis.  There is also evidence to suggest that stress can worsen some symptoms.

The symptoms include the following:  

·       Anxiety / panic attacks ·       Migraines / headaches ·       Heart palpitations ·       Insomnia ·       Night sweats ·       Hot flushes ·       Light headedness /dizziness ·       Fatigue ·       Low mood / irritability

·       Loss of concentration ·       Poor memory ·       Irregular and/or heavy periods ·       Joint stiffness ·       Urinary problems ·       Gynaecological problems ·       Dry eyes, mouth, skin and hair ·       Hair loss / thinning ·       Weight gain

Why should employers care about the menopause?

Currently, around one out of every eight British workers is a woman over 50, and by 2022 this will increase to around one in six.  Given that a third of menopausal women experience severe symptoms, managing the impact of the menopause is something that most employers will need to grapple with at some point. 

It’s clear from the list of the symptoms that the menopause has the capacity to have a significant impact on a woman’s health and general wellbeing.   Not only can these symptoms adversely affect a woman’s performance at work, they can lead to periods of sickness absence.  One survey suggests that up to 14 million working days are lost each year in the UK due to the menopause.  In extreme cases, it may even lead to the woman leaving employment.  Therefore, it’s in an employer’s interests to support women through this period of their lives and avoid these negative outcomes where possible.

Employers should also be mindful of the risk of discrimination against a menopausal woman on the grounds of sex, age and/or disability.  This could arise in a number of ways, for example:

• Jill is menopausal and her performance dips as a result of loss of concentration, fatigue and poor memory. She is placed on a performance improvement plan (a PIP).  Jack’s performance has also dipped as a result of “long COVID” symptoms but he is not placed on a PIP.  This could amount to direct sex discrimination.
• Emma’s manager insists that team meetings take place early in the morning before the working day starts. Emma is menopausal and suffers from insomnia, night sweats and loss of concentration.  She finds it extremely difficult to attend the early meetings and when she does attend, she struggles to participate effectively.  The practice of holding the meetings early in the morning could amount to indirect sex discrimination.
• Lisa’s colleagues know she is going through the menopause and make jokes about it such as leaving a fan and a bag of ice on her desk and asking if she remembers what day it is. These jokes could amount to harassment related to sex and/or age.

More recently, Tribunals have been prepared to conclude that women suffering from menopausal symptoms are disabled for the purposes of the Equality Act 2010, meaning they are protected from disability discrimination.  For example, in the case of Davies v Scottish Courts and Tribunals Service (2018), a Tribunal concluded that a woman suffering from a range of perimenopausal symptoms (namely heavy bleeding, cystitis, light headedness, loss of concentration and feeling emotional) was disabled.  Her dismissal for conduct which had arisen out of those symptoms was discriminatory.

Similarly, in the case of Donnachie v Telent Technology Services Ltd (2020), a Tribunal decided that “typical” menopausal symptoms could amount to a disability, and that treatment for those symptoms (such as hormone replacement therapy) should be disregarded for the purposes of this assessment.  In that case, the woman suffered from a range of symptoms including hot flushes, disturbed sleep, fatigue, memory and concentration problems and anxiety.

Importantly, where an employee is disabled, the employer has a positive duty to make “reasonable adjustments” to remove or reduce any substantial disadvantage suffered by that employee compared to others.  For menopausal women, this could include things like ensuring the workplace is cool and well ventilated, adjusting start and finish times, allowing additional breaks and providing access to counselling services. 

What can employers do to support women going through the menopause?

The good news is that there are lots of things employers can do to support this valuable cohort of employees to remain well, effective and happy at work. 

• Conduct health and safety checks and take steps to minimise risk: Employers have duties to take care of the health, safety and wellbeing of all employees. This includes a duty to assess risks to health and safety in the workplace and takes steps to minimise those risks.   As far as the menopause is concerned, this means employers should take steps to ensure that symptoms are not made worse by the workplace or working practices and, where necessary, make changes to help women manage their symptoms whilst working.  This might include things like keeping the workplace cool, providing cold drinking water and making a restroom easily available.

• Bring in a menopause policy: It’s a good idea for employers to introduce a specific policy setting out its approach to menopause at work. A policy like this can help raise awareness of the issue amongst the wider workforce by explaining what the menopause is and the symptoms that women experience.  It can also normalise the issue by encouraging staff to have open conversations and to provide support to affected colleagues.  The policy can also explain the company’s approach to risk assessments and workplace adjustments.

• Provide training for line managers: Employers should also roll out training to line managers to ensure they understand what the menopause (and peri and post menopause) is and be able to spot symptoms. This understanding will help managers have discussions with affected employees in a supportive and sensitive manner.  Such training should also set out the legal duties and risks that arise and what kinds of support can be offered.

• Manage sickness absence or dips in performance carefully: Sickness absences and dips in performance should be handled with care, and support should be in place to minimise the impact of menopausal symptoms wherever possible. This may include making temporary or permanent changes to the woman’s job role, such as changing responsibilities or reducing hours.  In particular, employers need to bear in mind the risk of discrimination, especially disability discrimination, when recording levels of sickness absence.  Disability-related sickness absence should be recorded separately from other sickness absence and should usually be disregarded for the purposes of managing sickness absence.

• Consider having a menopause champion in the workplace: Larger employers may wish to consider introduce a key contact or “champion” with expertise on the issue for affected employees to talk to (e.g. a member of HR). As well as being a figurehead for the issue in the organisation, the champion can do other things such as help raise awareness, run training, review risk assessments and lead a support network.

If you would like to discuss how your organisation can support staff though the menopause, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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