Are you taking enough care of employees who are going through the menopause?

Severe or prolonged symptoms mean some adjustments may need to be made to create a comfortable workplace, says Sarah Maddock

The problem

In September 2023, insurance company Direct Line was ordered to pay almost £65,000 after it failed to make reasonable adjustments and discriminated against employee Maxine Lynskey when her ability to perform her role was severely affected by menopause symptoms.

With the hospitality sector continuing to face issues related to staff attraction and retention, it’s more important than ever for operators to recognise and address the impact of menopause, and they should be aware of the discrimination risks they face if they mistreat or fail to make reasonable adjustments to help someone perform their work duties if they are suffering from menopause symptoms.

The law

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. Advisory service Acas 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 for disability discrimination under the Equality Act 2010.

Expert advice

The case of Lynksey V Direct Line 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, but 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 potential claim for failing to make reasonable adjustments.

To-do checklist

• 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 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, such as performance management and sickness absence procedures.
• Employers shouldn’t only have an eye on adjustments for those who may be covered under the Equality Act 2010. They should also make small adjustments that can make a huge difference to an employee during this transitionary period, such as provision of sanitary items in the workplace bathroom and providing better ventilation or a desk fan.
• Consider implementing a menopause policy. There are many toolkits available to help businesses develop effective policies, such as from the Chartered Institute of Personnel and Development. Ensure that any menopause policy is actively implemented after being introduced.

Contact

Sarah Maddock is a senior knowledge lawyer at national law firm TLT

sarah.maddock@tlt.com

Photo: Magnifical Productions/shutterstock