When we think of the challenges women face in the workplace, the first issue that usually comes to mind is pregnancy and maternity leave. However, there are many other issues and challenges women face – even in 2023.
In this blog, our employment team summarise some of the main issues and challenges and how the law does (and does not) protect women in the workplace.
Differences in pay
Despite the fact that discrimination and equality is discussed in the media and the legal arena very regularly, there is still a difference in the average earnings of men and women across the workforce. This is referred to as the gender pay gap.
Since 2017, employers with a headcount of 250 or more are obliged to comply with the regulations on gender pay gap reporting. The aim of gender pay gap reporting is to close the gap between the differences in pay between men and women by shining a light on this issue and therefore encouraging businesses to take active steps to address the gap.
Whilst gender pay gap reporting has been subject to criticism, (mainly because it just requires reporting figures rather than fixing the issue of inequality) the gender pay gap has decreased since its implementation in 2017. Whilst this decrease may not necessarily be due to the introduction of pay gap reporting (as it was on a decline anyway), it has certainly highlighted the issue.
Gender pay gap reporting is not the same thing as equal pay which means that by law men and women must get equal pay for equal work. Equal pay law doesn’t just address inequality of pay but inequality of any contractual term in an employee’s contract including non-discretionary bonuses, pensions and promotions. However, in reality most Equal Pay claims do relate to pay.
It can be quite confusing for claimants as to whether the claim they should be bringing is in fact equal pay or sex discrimination and this should be carefully considered as this area of law is very complex. However, put simply, equal pay covers equality of contractual terms, whereas sex discrimination claims cover other matters not included in the contract of employment, such as where a woman is overlooked for a promotion which is awarded to her male colleague.
Sexual harassment
Whilst sexual harassment in the workplace is not something solely experienced by women, they are still more likely than men to be the subject of sexual harassment. In recent years, this issue has been widely discussed and debated in the media with the MeToo movement, meaning women have felt more empowered to be more open about their experiences.
Under the Equality Act 2010 (“EqA”), sexual harassment occurs where both (1) the perpetrator engages in unwanted conduct of a sexual nature and (2) the conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Under current UK law, if a woman is sexually harassed at work by a colleague the individual perpetrator of sexual harassment can be named as a respondent to an employment tribunal claim as well as the employer. Employers can be deemed to be responsible for the perpetrators conduct, which is called vicarious liability, if they have failed to take reasonable measures to protect their workforce. Along with claims under the EqA, victims of sexual harassment in the workplace may also have grounds to claim constructive dismissal if they have felt that they are unprotected in the workplace and have been compelled to resign.
If, however, an employee is harassed at work by a third party – for example by a customer, employees have very limited recourse against their employer. However, a Private Member’s Bill (the Worker Protection (Amendment of Equality Act 2010) Act 2023) supported by the government, proposes greater protection to those suffering from harassment in these circumstances. Under the Bill an employer will be liable when a third party harasses an employee during the course of their employment when the employer has failed to take reasonable steps to prevent the harassment. The government has confirmed that this new duty for employers to prevent sexual harassment in the workplace will be introduced as soon as parliamentary time allows – so watch this space.
Periods
Women in Spain now have the right to three paid days menstrual leave a month — with the option of extending it to five days. But what are the rights in the UK for women who suffer from painful (and sometimes debilitating) periods?
Currently under UK law, those who experience painful periods are obliged to use their sick leave for time off work. However, with periods happening monthly (and organisations providing limited company sick pay, if any), many women feel disadvantaged or compelled to just struggle through work. Whilst there is currently no indication that UK law will follow in Spain’s footsteps, this recent change to Spanish laws has highlighted this issue which can severely affect women in the workplace.
Whilst the introduction of menstrual leave into UK law in the future would be welcomed by many suffering women, others fear it would be counterproductive. They fear that introducing such leave would discourage employers from taking on female staff and even if it was introduced, would employees feel comfortable taking it?
Whatever your view, it is certainly worth employers being mindful of the impact of the effect of periods on female staff and even if they do not wish to implement a paid leave policy, employers could provide female staff with greater flexibility during this time and create an environment in which it isn’t an embarrassing or taboo topic.
It is also worth noting that if women have particularly painful or debilitating periods, or their painful periods are part of a condition such an endometriosis, they may be protected under the EqA from disability discrimination. They would have to show that their condition has a substantial and long-term adverse effect on their ability to carry out day-to-day activities.
Menopause
The symptoms of menopause on female members of staff do vary, however for some women they can be severe and adversely affect both their home and work life. It is important for employers to be mindful of the effects of menopause which usually happens to women between 45 and 55 years of age. However, it can begin much earlier.
There are three different stages to the menopause: (1) perimenopause (2) menopause and (3) post menopause.
The symptoms of menopause can be both mental and physical, and women can suffer from depression, memory loss, hot flushes and heavy periods to name but a few. It is therefore no surprise that women can find work more of a struggle and this can be made even more difficult if they work in an environment where the effects of menopause aren’t openly addressed and instead treated as a taboo topic (much like periods). In fact, 1 in 10 women left work last year due to the menopause and three quarters of women don’t tell their employer that their sick leave is related to menopause.
The menopause is not in itself a protected characteristic under the EqA, and the government has confirmed that it currently has no plans to make it one or to introduce other enhanced legal rights including menopausal leave. Nevertheless, the mistreatment of women suffering from the menopause can still amount to unlawful discrimination at work on the grounds of sex, age and disability. In fact, menopause related employment tribunal claims have increased in recent years, and the effects of the menopause has been determined to satisfy the definition of disability under the EqA on numerous occasions.
The labour government has recently announced plans to bring in a requirement for large companies to create and implement menopausal action plans which contain the steps an employer has taken to support women suffering from the menopause in the workplace. Employers would then submit these plans using the same portal as that used for gender pay gap reporting.
Infertility and In Vitro Fertilisation (“IVF”)
Infertility is an issue that affects many men and women; however, women often feel reluctant to inform their employer of their struggles for fear of being discriminated against on the basis they may get pregnant and go off on maternity leave. Also, women are put at a particular disadvantage given that assisted conception treatment is typically more invasive for women meaning that they require more time off work.
Despite IVF and other assisted conception methods usually involving frequent and multiple medical appointments, there is currently no specific statutory right to time off for such treatment. Nevertheless, individuals may well still be protected under the law as a woman who requests leave to undergo IVF treatment and is refused may well be able to claim direct sex discrimination. Further, a woman may have a claim for indirect sex discrimination if her employer has a provision, criterion or practice of not allowing employees to take time off from work to attend such appointments. A woman may also be able to bring a claim for automatic unfair dismissal against her employer if they have dismissed her for taking time off for treatment on the basis that the dismissal was related to pregnancy (even though she is not actually pregnant).
A woman undergoing IVF treatment will specifically be protected under the EqA against sex discrimination from the time of the follicular puncture until the implantation of the fertilised egg immediately after fertilisation. However, once the fertilised egg is implanted then a woman is pregnant and from this point will be protected under pregnancy and maternity legislation. If the implantation of the fertilised egg is then unfortunately unsuccessful, a woman will continue to be protected under pregnancy and maternity legislation for a further two weeks from the failed pregnancy.
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If you feel you have been treated unfairly in the workplace due to one of the issues discussed above, please do get in touch on 0161 930 5151 or email: employmentteam@gorvins.com