The menopause – getting it right
The latest headlines suggest there is a growing awareness around menopause and how it can affect an employee at work. As this awareness grows, so too do the statistics in relation to litigation concerning menopause-related issues: Employment Tribunal claims which cite the menopause have increased over the last three years. In today’s workforce, where one in three workers is over 50 and 80% of women aged 45 to 55 are employed, it’s essential for employers to recognise and address the impact of menopause. They also need to be alive to the discrimination risks they face if they mistreat employees and/or fail to make reasonable adjustments to help someone perform their work duties if they are suffering from severe and prolonged menopause symptoms.
The legal position
Employers have a general duty to ensure the health, safety and welfare of employees at work, which covers the full spectrum of women’s health-related issues, including menopause. Employers also have a legal duty to carry out suitable and sufficient assessments of the risks to the health and safety of employees in the workplace. Risk assessments should consider what arrangements an employer could reasonably put in place to help alleviate the impact of menopause symptoms on an employee’s work. Acas guidance suggests that a menopause risk assessment could include, for example, temperature and ventilation, whether cold drinking water is available and whether managers have been trained on health and safety issues related to the menopause.
There is no one size fits all approach. For some, menopause symptoms can be severe and have a long-term and significant impact on quality of life and ability to work. In these cases, menopause symptoms could satisfy the definition of a disability set out in the Equality Act 2010. Where an employee is considered to be disabled due to the menopause, employers have an obligation to make reasonable adjustments for them. Employees who are classed as disabled by their menopause symptoms may also be able to bring claims under the Equality Act 2010.
The Lynskey case
This was illustrated in a recent case against Direct Line, which was ordered to pay almost £65,000 after it failed to make reasonable adjustments and discriminated against Ms Lynskey when her ability to perform her role was severely affected by menopause symptoms. In this case, Direct Line was aware that Maxine Lynskey’s symptoms had negatively impacted her work performance, in contrast to four years of good performance.
Although the company took steps to assist Ms Lynskey, she was given an annual performance rating of requiring improvement, meaning she did not receive a pay rise. In addition, her new manager took disciplinary action in response to what was classed as poor performance, and her sick pay was stopped due to the number of absences. Ms Lynksey resigned in May 2023, bringing a claim that the company had breached the Equality Act 2010. A tribunal upheld her claims for disability discrimination and a failure to make reasonable adjustments, awarding her £64,645.07.
The case illustrates the difficulties an employer can face when trying to performance manage a disabled employee. The tribunal did not go so far as to say that an employer can never fairly performance manage a disabled employee. However, the judgment clearly illustrates that doing so without being able to show that a stated legitimate aim could not be achieved by less-discriminatory means will put an employer at risk of a finding of indirect disability discrimination and/or discrimination arising from disability, as well as a claim for failing to make reasonable adjustments.
To do list for employers
- Create a culture where employees can talk about their symptoms and challenges related to the menopause.
- Line managers must be equipped with the right knowledge to effectively support employees in the right way. Chairwoman of the Equality and Human Rights Commission (EHRC), Baroness Kishwer Falkner has asserted that the EHRC will launch new guidance for employers in relation to the treatment of staff who are experiencing the menopause.
- Ensure that reasonable adjustments are put in place. This obligation would only be triggered under the Equality Act 2010 if menopausal symptoms are severe and long-term. Adjustments could include allowing extra toilet breaks, allowing employees to order desk fans and adjusting existing workplace policies and procedures, performance management and sickness absence procedures.
- Employers shouldn’t only have an eye on adjustments for those who may be covered under Equality Act 2010. They should also make small adjustments such as provision of sanitary items in the workplace bathroom, providing better ventilation/desk fan, making a huge difference to employees during this transitionary period.
- Consider implementing a menopause policy. There are many useful toolkits available to support businesses develop and implement effective policies. For example, the CIPD provides a toolkit outlining how employers can create menopause policies. Ensure that any menopause policy is actively implemented after being rolled out.
For more information on supporting employees through the menopause, including guidance on developing a menopause policy, see TLT Menopause Toolkit.pdf
Amy Stokes, partner in national law firm TLT’s employment team.