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Advice For Employers & HR Professionals

Menopause in the workplace

Following World Menopause Awareness month, the issue is at the front of our minds at Team Torque, having based our recent Mock Employment Tribunal event on a disability discrimination and unfair dismissal claim brought by a menopausal employee and also because of a recent case and governmental developments in the area.

In the Tribunals, the recent case of Lynskey v Direct Line heard by the Leeds Tribunal had a costly outcome for the employer, both financially and in terms of reputational harm.

Mrs Lynskey’s menopausal symptoms were sufficiently severe for her to be regarded as disabled under the Equality Act and the Tribunal went on to find that she had been treated unfavourably during her employment because of something arising in consequence of that disability.  That unfavourable treatment included Direct Line issuing her with a low performance rating and a formal warning when Mrs Lynskey’s performance declined due to menopausal symptoms, even though she had always been a high performing employee in the past.  In addition, Direct Line decided to stop paying discretionary sick pay to her, even though she could still have been entitled to receive it.  Although it is possible for employers to set out a defence that their potentially discriminatory actions could be objectively justified, Direct Line didn’t provide any evidence of that at the Tribunal.  The Tribunal found that Direct Line could have taken a less discriminatory approach, including referring Mrs Lynskey for an occupational health appointment and considering other roles for her.

The judgment also reflects a trend of cases in which employers are found to have fallen short in their duty to make reasonable adjustments to overcome disadvantage caused by an employee’s disability.  The Tribunal accepted that Direct Line had made some adjustments in that they had provided additional support and training for Mrs Lynskey.  However, they found that Direct Line should have gone further and should have abandoned the performance procedure, lowered Mrs Lynskey’s targets and considered moving her to another role.

Mrs Lynskey was awarded over £64,000 – of that £23,000 was given for injury to feelings and the Tribunal also made an award for aggravated damages due to the way Direct Line had conducted the case.

In our experience menopause cases can be complex, partly because of the potential for an employee to bring claims based on disability, sex and/or age discrimination as well as related unfair or constructive dismissal claims.  There are many easy steps an employer can take to make the working environment as open and inclusive as possible – by doing so the risk of employees being able to succeed with a claim like this will clearly be reduced but by showing understanding and a willingness to accommodate employee’s conditions, employees tend to show great loyalty and are far less likely to feel that they have to bring a claim like this.

In the meantime, the government’s Menopause Employment Champion, Helen Tomlinson, has been behind new guidance on Menstruation, menstrual health and menopause in the workplace (available here) and the Menopause Workplace Pledge (available here).  If you’re in the retail, hospitality, care, manufacturing and professional/technical sectors, keep an eye out for specific employer guidance due to be issued in the next 6 months.

We’d also advise that it’s a great step to introduce a menopause policy in your workplace and to do so with the benefit of input from your staff and specialists.  If you need help putting a policy together, just let us know.


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