This year on 8 March, I found myself considering the upwards trajectory of women over the years to what we hope is now equality. Sadly, although there has been much progress, we are not there yet.
There are, however, numerous legislative changes that have been proposed in the last few months that should continue to move women to a place of genuine equality. Particularly relevant examples include:
- Protection from Redundancy (Pregnancy and Family Leave) Bill
- Worker Protection (Amendment of Equality Act 2010) Bill
- Consultation on menopause support
But what will be their actual on-the-ground impact on employment law?
Gender and the workplace
Why the workplace just isn’t working for all women
What do inclusive cultures really look like?
Protection from Redundancy (Pregnancy and Family Leave) Bill
This bill proposes to prevent employers from making women redundant from the moment pregnancy is disclosed until a child is 18 months old.
While this would, undoubtedly, support employees during a time "fraught with risk" for women, according to Unison’s General Secretary Christina McAnea, commentators such as Joeli Brearley from lobby group Pregnant then Screwed think this protection does not go far enough.
Brearley takes the view that given that most women in a potential unfair redundancy situation close to the birth of a child are not in a position financially or emotionally to manage an employment tribunal claim within the three-month limit, a better government step would be to invest in the tribunal system so it can better provide timely justice for claimants.
I believe this bill is a step in the right direction, but doesn’t cover the risks of deferred action on the part of an unscrupulous employer who may simply take action at a later date. That said, it would give a woman time to properly engage with work after return from maternity leave and would certainly act as a deterrent.
Worker Protection (Amendment of Equality Act 2010) Bill
The Worker Protection (Amendment of Equality Act 2010) Bill first reintroduces employer liability for acts of harassment by a third party, such as a client or supplier, against an employee. It also introduces a new duty on employers to prevent the harassment of their staff.
Practical considerations include what exactly will be needed by employers to confirm that they have done what they can to prevent both third party and internal harassment.
This will become clearer with Equality and Human Rights Commission guidance, but until received this bill is arguably unworkable as there is currently no understanding of what employers can do to prevent harassment and avoid what is now extensive and wide-reaching liability.
The criticism levied against the bill in Parliament focused on whether, for example, pubs would have to introduce ‘no banter please’ signs to show they have attempted to meet their new statutory duty.
If the structure of the current legislation without guidance is followed, it is arguable that a blind amenities seller at a football match, who is insulted by the fact that a horde of football fans yell out that the ‘ref is blind’, would be able to sue his employer for the third-party insult he has suffered related to his protected characteristic.
We must find a way to ensure that the instigation of this duty on employers has the desired effect of actually protecting the vulnerable, rather than creating an unfair burden on sometimes very small employers who may have little control over third parties, or creating a box-ticking exercise where individuals are not truly protected.
Consultation on menopause support
This government, against the view of the consultation, eventually decided against introducing the menopause as a protected characteristic under the Equality Act and against the introduction of menopause leave.
The difficulty with menopause as a protected characteristic is that every woman’s experience and timing of the transition is different. It is arguable that more in-depth research into the demographic impact of menopause would be needed before embodying such protections in law.
Hina Belitz is a partner and specialist employment lawyer at Excello Law
In celebration of International Women's Day HR magazine will be posting articles throughout March highlighting ways to challenge barriers to gender equity in the workplace. Read more here.
