Given that 80 per cent of women aged 45 to 55 are employed, it is encouraging that awareness of the need to support employees experiencing menopause is growing. As this awareness grows, so too do employment tribunal statistics concerning menopause-related issues: claims citing menopause have increased over the last three years.
Employers need to be alive to the equalities and business risks of failing to support employees experiencing menopause symptoms, particularly those whose symptoms are severe and prolonged.
New government plans and guidance
To coincide with this year’s World Menopause Day on 18 October 2023, the Department for Work and Pensions published No Time to Step Back – a policy paper that summarises the work undertaken by the government’s menopause employment champion since her appointment in March 2023 and sets out a four-point plan to improve workplace menopause support. These are:
- Sharing best practice within sectors via a portal
- Launching a sector-specific allyship programme
- ‘Menopause-friendly employers’ to advocate within a sector
- A sector-based communications plan
Alongside the four-point plan, the government has launched a new Help to Grow website for employers, which collates a range of information and guides on creating a menopause-friendly workplace.
The legal position
Businesses have a general duty to ensure the health, safety and welfare of employees, which covers the full spectrum of women’s health-related issues, including menopause. They also have a legal duty to carry out suitable and sufficient risk assessments and these should consider what arrangements an employer could reasonably put in place to help alleviate the impact of menopause symptoms. Acas guidance suggests, for example, temperature and ventilation, providing cold drinking water and training managers.
There is no one-size-fits-all approach. For some, menopause symptoms can be so severe and long term that they satisfy the definition of a disability in the Equality Act 2010. This would trigger protection from discrimination and an employer’s duty to make reasonable adjustments.
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. Direct Line was aware that Lynskey’s symptoms had affected her work performance, in contrast to four years of good performance.
Lynskey 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 because of the number of absences.
Lynksey resigned, bringing a claim that the company had breached the Equality Act. 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 a business can face when trying to performance manage a disabled employee. But the tribunal did not go so far as to say that employers 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 organisations 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 businesses
- Create a culture where employees can talk about their symptoms and challenges related to menopause.
- Review the resources and business cases for providing menopause support on the Help to Grow website.
- Equip line managers with the right knowledge to effectively support employees in the right way. Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission (EHRC), has asserted that the EHRC will launch new guidance for employers in relation to the treatment of staff who are experiencing menopause.
- Keep an eye out for the first phase of the four-point plan outlined above. Currently this is being rolled out for sectors covering hospitality, retail, care, manufacturing and professional and technical.
- Ensure that reasonable adjustments are put in place – for example, allow extra toilet breaks, allow employees to order desk fans and adjust existing workplace policies and procedures, performance management and sickness absence procedures.
- Be prepared to make adjustments. Employers shouldn’t only have an eye on adjustments for those who may be covered under the Equality Act. 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 introducing 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.
Sarah Maddock is a senior knowledge lawyer at TLT