Menopause and Fire & Rehire Practices

Jan 27, 2023

Government Announcements: Menopause in the Workplace and Fire and Rehire Practices


Menopause in the Worplace

Back in July 2022 the Women and Equalities Committee (WEC) issued their recommendations following an inquiry into Menopause and the workplace. The inquiry resulted in several recommendations being made for the government to consider.  

The Recommendations

Some of the key recommendations made by the WEC were:

  • Specific menopause leave;
  • Greater flexibility on sickness policy; and
  • Making menopause a protected characteristic.

When making the proposal, the WEC expressed that implementing these proposals would go a long way to stop women from being forced out of the workplace by insensitive and rigid work policies.

The Response

Earlier this week, the government issued their highly anticipated response to the inquiry.

Following their consultation, the government has rejected the vast majority of proposals made by the committee. They stated, “we are concerned that specific menopause leave may be counterproductive to achieving this goal”. It also vetoed the proposal to make menopause a ‘protected characteristic’ under the Equality Act and confirmed they will not hold a further consultation on this point due to concerns it could discriminate against men suffering from long term medical conditions.

The government has agreed that employers should be encouraged to put in place workplace menopause policies, accept ‘in principle’ the recommendations to launch a public health campaign around menopause and appoint a menopause ambassador to monitor the progress made by businesses in improving working conditions for employees during menopause.

This government’s response has been heavily criticised and condemned by the WEC who has said the government has missed the opportunity to protect a vast number of working individuals. The WEC has also commented that it is not clear how making menopause a protected characteristic could be discriminatory to men with long-term health conditions, if one compares it to whether the pregnancy discrimination provisions discriminate against men. The WEC stated “menopause is an inevitable part of all women’s life course, as opposed to a form of long-term ill health.”

Whilst further progress is clearly needed in this area, based upon the government’s current response, we are unlikely to see any significant developments in the near future.

Changing terms of employment – Firing and Re-hiring?

This week the government has also published the draft Statutory Code of Practice on the “Dismissal and Re-engagement” (the Code) of employees. The Code remains in draft and under consultation which is due to close on 18 April 2023.

The Code has been prepared following significant pressure being put on the government regarding “fire and rehire” practices following the wide scale dismissals of P&O employees last year.

Fire and rehire

Dismissal and re-engagement, more commonly known as firing and rehiring is a practice some employers adopt to make changes to the terms of employment. Where an employee does not agree to the changes, their employment is terminated and they are offered new employment on the new, and usually less favourable, terms.

The Draft Code

The Code has been drafted with a view to avoid potential conflicts between employers, employees, and trade unions, and provide guidance on managing and resolving any conflicts that may arise. The Code does not prohibit the fire and rehire practice, however, it makes it clear that such steps should be taken only as a last resort where there is legitimate business reasons to do so.

The Code sets out the responsibilities employers have when seeking to change the terms of employment, including the need to consult in a “fair and transparent way”. It provides recommendations about the type of information that the employers should consider sharing with the employees such as the nature of the changes, the possible effect on relevant employees and the timeframe for implementation of those changes.

In the event employers decide to unilaterally implement new terms or to fire and rehire, the Code asks employers to re-examine its business strategy against the serious consequences of the changes, and whether this could have a disproportionate impact on a specific group of employees sharing a protected characteristic.

The Code does not necessarily introduce particularly new practices and reflects the steps most employers should be taking as a matter of best practice.  However, it does introduce sanctions for failing to follow the Code. When dealing with an Unfair Dismissal claim, an Employment Tribunal will be able to apply an uplift of up to 25% of the compensation awarded if there is an unreasonable failure to follow the Code.

The Code is a positive step for employers in encouraging them to take the right approach to preserving their reputation and industrial relations while making decisions for the economic benefit of the business. It is also a welcome development for employees as it aids them in making informed decisions based on the impacts of the changes and allows them to resist or delay any changes that adversely affect them.

For further information on these topics or to discuss the issues raised in this update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Samuel Gray

Samuel Gray

Solicitor, Employment

Abhi Babu

Abhi Babu

Trainee Solicitor, Employment Law

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