UK Update: Menopause – Training Managers on Legal Duties is Crucial to Avoid Tribunal Claims

With World Menopause Day on the 18 October, and the “male menopause” making newspaper headlines, it’s a good time to reflect on the progress of menopausal support in the workplace.

Conveniently, there have been two recent successful employment tribunal decisions concerning the menopause which provide insight into how employers are handling the impact of menopause at work.

What is clear from these decisions is that to avoid facing costly tribunal awards, and the adverse publicity which flows from a successful tribunal claim, there is a need for more employers to be training managers on their legal duties when handling menopausal individuals at work.

Lynskey v Direct Line Insurance Services Ltd

In the case of Lynskey v Direct Line Insurance Services Ltd, the claimant’s performance was rated ‘very good’, but she started to suffer from menopause symptoms including effects on memory and poor concentration that impacted her work. She informed her manager about her symptoms and the treatment that she was receiving. Concerns were raised regarding her performance and with her agreement, she was moved to a different role which was deemed a ‘better fit’ considering her personal and health circumstances.

Despite being provided with support in her new role she was graded as ‘need for improvement’ in her next review. Further training and support were provided but the claimant was subsequently issued with a disciplinary warning for her performance. After a while, she was signed off sick and her company sick pay was eventually stopped, as her employer believed she was not doing enough to return to work. She subsequently resigned.

The claimant raised several complaints with the tribunal, including discrimination arising from a disability and failure to make reasonable adjustments. The respondent accepted shortly before the hearing that she was disabled by reason of her menopausal symptoms under the Equality Act 2010.

Discrimination arising from a disability

The tribunal found that the rating of ‘need for improvement’ (and associated lack of pay rise) was unfavourable treatment arising as a consequence of the claimant’s disability as her difficulty concentrating and retaining information was because of the menopause. The tribunal held that the respondent should have considered rating her performance as “good” as she was doing all that she could, within her limitations.

Applying a similar rationale, the tribunal also upheld the claim of discrimination arising from a disability in relation to the disciplinary warning and held that a less discriminatory approach could have been taken –  including referring the claimant to Occupational Health, consideration of other roles, and accepting her health mitigation for the ongoing performance issues. Similarly, the tribunal found that the withdrawal of sick pay amounted to discrimination.

Reasonable adjustments

The tribunal held that requiring the claimant to reach the standards of her role put her at a substantial disadvantage compared to people who were not disabled, and adjustments should have been implemented. The tribunal referred to adjustments that could have been made including reducing targets and abandoning the disciplinary process.

The claimant was awarded over £60,000.

Mrs K Anderson v Thistle Marine (Peterhead) Ltd and others

In Mrs K Anderson v Thistle Marine (Peterhead) Ltd and others, the menopause impacted the claimant badly, including heavy menopausal bleeding and loss of concentration, brain fog and anxiety. On one occasion when she worked from home due to her symptoms and came into the office in the afternoon the next day, her employer confronted her with a sarcastic tone saying, ‘oh I see you’ve made it in!”.

Despite trying to explain to her employer the difficulties that she was experiencing and the impact it was having on her work, her manager dismissed her symptoms saying, “a’biddy has aches and pains,” and told her that the menopause was her excuse for everything.

After raising a grievance about her treatment, her remote IT access was cut off meaning she could no longer work from home. She resigned and was successful in claims for both constructive unfair dismissal (due to her employer’s treatment of her) and sexual harassment (as her manager’s comments violated her dignity). She was awarded nearly £40,000.

Practical tips

These cases illustrate that there is still an education gap both in terms of understanding how the menopause can impact an individual’s ability to do their job and the protection afforded to those suffering from the menopause. Whilst in the Lynskey case the claimant’s manager did provide support, it was not sufficient to avoid a successful discrimination claim.

Employers should provide specific training for managers on the legal duties which arise in such circumstances. The recent media attention around the “male menopause” (sometimes called the andropause) illustrates that there is a need not just for an education piece around the menopause, but for employers to raise awareness surrounding all ‘taboo’ health issues and the legal duties which arise when managing those health issues in the workplace.

Our menopause toolkit can assist you in avoiding similar claims and includes a menopause policy, key actions employers should take, access to literature which we have created, and training for staff.

By Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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