UK: What Do Menopause, Castes, Copyrights, And Scottish Independence Have In Common? All Have Been Recently Put To The Test Under UK's Equality Law

Human resources teams in the United Kingdom regularly deal with issues that relate to possible discrimination under the Equality Act 2010 (EqA), the law that codifies various anti-discrimination regulations for employers in England, Scotland, Wales and Northern Ireland. Discrimination issues are often tricky, raising issues that are not clear-cut. For example, does a woman suffering from menopausal symptoms have a disability? Is belief in Scottish independence or the sanctity of copyright a protected religion or belief? Is one's "caste" a protected category? Below is an update on key recent developments that help clear up some of these areas of uncertainty.

Menopause and disability

Few employers appear to consider the effects of menopause on their workforce and many might not consider a failure to do so as discriminatory. However, given that 7 out of 10 women are still working at the age of 51 (the average age of natural menopause), it appears to be an area where employers could be more conscious of their responsibilities.

One employer that is ahead of the game in this area is the University of Leicester, which has recently gained press attention for its menopause policy. Staff are encouraged to announce in meetings if they are having a hot flush and to use the word "menopause" at least three times a day in an attempt to break down the taboo and the barriers for women experiencing menopausal symptoms.

There is limited case law on disability discrimination arising from the menopause transition, but the recent case of Davies v Scottish Courts and Tribunals Service confirmed that, at least in some circumstances, it will be considered a disability under the EqA. This means that employers are required to make reasonable adjustments for menopausal women (as is required for other disabilities). Ms. Davies experienced relatively severe effects from her menopause transition, including regular heavy bleeding, stress and memory loss. The parties agreed that she was disabled for the purposes of the EqA and, by all accounts, the employer had generally done a good job of making reasonable adjustments for her. The tribunal found, however, that the respondent's handling of a disciplinary investigation into the claimant's conduct had failed to consider the impact of this disability on her conduct.

As is the case in the United States, the question of whether an employee is disabled will turn on the specific facts of the case. Under the EqA, claimants must show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Not all women experiencing the menopause transition will be classified as disabled for EqA purposes. Even where menopause transition does not meet the definition of a disability, employers in the UK must still be conscious of avoiding discrimination on the basis of sex.

As a practical point, employers in the UK may want to think about following Leicester University's example and introducing a menopause policy, which could include offering desk fans to employees, allowing flexible working from home so employees can better cope with sleep disturbances, and offering dedicated quiet spaces to assist with concentration issues.

Believe it or not?

Of the nine protected characteristics set out in the EqA, it is perhaps "religion or belief" that is the hardest to define. To be protected, a belief must be genuinely held. It also must relate to a weighty and substantial aspect of human life and it must be worthy of respect in a democratic society. It must also have a certain level of cogency, cohesion and importance. It is easy to see that there is potential for significant uncertainty. Could a claimant validly bring a claim based on their vegetarianism? If not, then would a steadfast commitment to pacifism suffice?

These questions remain untested by case law, but thanks to the recent case of Gray v Mulberry, we now have some guidance on whether a "belief in the sanctity of copyright" constitutes a belief under the act. The employment tribunal's view in this case was a resounding "no" – it decided that the claimant's belief lacked sufficient cogency to qualify. The claimant had refused to enter into an employment contract which assigned intellectual property rights created in the course of employment to her employer. Amongst other things, she was unable to show that she belonged to a group that shared her belief.

Contrast this with another recently decided case, that of McEleny v Ministry of Defence, in which the tribunal decided the claimant's belief in Scottish independence did qualify as a philosophical belief. Mr. McEleny was involved with the Scottish National Party. He alleged that his security clearance was revoked by the respondent following his decision to run for a senior position within the party. The Tribunal concluded that this belief was of sufficient substance to be worthy of protection. In the current political landscape across the UK, where Brexit has divided opinions in many workplaces, we might ask whether a forcefully held stance on the European Union might also satisfy the test, given the right set of facts.

Protected, one way or another

The government has recently published the result of its consultation on whether "caste" should specifically be added as an aspect of "race" under the EqA, deciding that it should not. It decided, following a formal consultation period, that the existing judgment of the Employment Appeal Tribunal in Tirkey v Chandhok offers the necessary protection to would-be claimants who have been discriminated against on the basis of caste. That case allows such claims to be made where claimants can show that their "caste" is related to their ethnic origin, which is itself an aspect of race discrimination in the EqA.

The government appears to see this approach as proportionate and sensible, given the low number of reported cases relating to caste discrimination to date. However, if the case law becomes obsolete, we might expect to see a change to the EqA in the future.

Lessons to be learned

The law around discrimination is constantly evolving. Changes to prevailing attitudes and public policy will inevitably lead to areas of uncertainty in the law and disputes with employees. Reviewing and updating employee handbooks and policies including equal opportunities, sickness absence and flexible working policies is a useful tool to keep up with the law in this area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions