Tughans LLP on employment law and difficult workplace scenarios.

For October 2023, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem is:

“We have an underperforming employee and despite addressing the issue informally, her performance hasn’t improved. The next step in our capability procedure is to start a formal performance management process. The employee has said that she is currently going through the menopause and her symptoms are affecting her ability to do her job. How do I handle it?”

Research shows that there were over 15% more women aged between 50 to 64 in the workplace in 2019 than there were in 1992. As a result, more women are experiencing menopause during their working lives and it is increasingly important that employers have the right policies in place to help staff affected by the menopause.

Menopause can be an extremely challenging time in a woman’s life. Symptoms can be psychological, such as mood swings, feeling disengaged, anxious, unmotivated or withdrawn. It is common to  experience problems with memory or concentration, or “brain fog”. Physical symptoms can include sleep disturbance, reduced energy levels, hot flashes and headaches. Menopause symptoms vary in severity and can have a significant impact on a woman’s quality of life and ability to work.

While there is no ‘menopause-specific’ employment legislation, the employee may be protected by existing anti-discrimination laws. Employees who are treated less favourably due to menopause issues may be able to establish that they have been discriminated against on grounds of one or more protected characteristics, including their age, disability and/or sex. It’s worth remembering that protection from discrimination is a “day one” right for all employees.

Before proceeding with your formal capability process, you should carefully consider the effect the employee’s reported symptoms may be having on her performance. You should consider whether you can offer the employee additional support or adjustments that might help address her symptoms and improve her performance.

If you deal with the performance issue without addressing the underlying issues, the employee may argue that she has been discriminated against, and that any subsequent action or dismissal under your capability procedure was unfair.

You should meet with the employee and have a sensitive conversation about her symptoms before initiating the formal performance management process. Having regular conversations with staff and listening to their concerns might help resolve issues early and before any potential legal action is taken. You should reassure the employee that the conversation will be confidential, and that if she does not provide information about her symptoms, you would have to make your decisions on the information available. You might consider referring the employee for an occupational health assessment for their opinion on her symptoms and any recommended adjustments. They may recommend measures such as moving workstation, change in uniform or recording menopause related absences separately from other sickness absence.

If the employee’s symptoms are having a substantial and adverse effect on her ability to carry out normal day-to-day activities, she may be “disabled” under anti-discrimination legislation. In the first instance, it is usually best practice to focus on how you can support the employee, rather than trying to work out if her condition is a disability.

However, it may be appropriate to ask occupational health to assess whether the employee is “disabled”; this will help you establish the severity of her symptoms and whether your legal duty to make reasonable adjustments has been triggered. If it has, this may change how you implement your capability procedure in this case. Failure to do so could result in claims for discrimination on grounds of disability.

If the employee’s performance does not improve after you have provided additional support and carried out a fair capability process, you may need to consider dismissal on capability grounds. You should bear in mind your obligation to follow a fair procedure which complies with the statutory dismissal procedure. This would include providing the employee with the reasons for the potential dismissal, inviting them to a meeting, providing your decision and the right to appeal. Failure to follow a fair procedure will render any dismissal procedurally unfair and could form part of a discrimination based claim.

More generally, you could consider implementing a menopause policy. This would outline the support available to staff experiencing menopause and provide guidance for line managers when a menopause-related issue occurs.

October is Menopause Awareness Month and you might decide to take the opportunity to raise awareness within your workforce with initiatives like employee training, making learning resources available or holding an event.

Legal Island Training Resources for Your Staff

Menopause | eLearning Course

Are you responsible for overseeing and managing the wellbeing of all employees in your organisation?
The purpose of our course on menopause is to improve your staff’s understanding of the menopause and help create a more comfortable working environment for women experiencing the menopause. This course is for all employees, regardless of gender.
Dispelling the taboo surrounding menopause, helps an organisation build a more inclusive workforce and a great place to work. The cost of supporting colleagues in the workplace with compassion and simple reasonable adjustments is minimal in comparison with the cost of losing an employee.

Click here to access a free demo of this course, or access it as part of our employee wellbeing toolkit along with several other key mental health and well-being topic areas.