Christine Quinn, Legal Island and Seamus McGranaghan, O'Reilly Stewart Solicitors, are BACK to discuss your employment law queries live in our webinar series, “Employment Law at 11”. This month they discuss:

Equality Matters Special

1. Neurodiversity in the workplace

Recent CIPD research shows that 1 in 5 neurodivergent employees have experienced harassment or discrimination at work, and only half say they would feel safe to talk about neurodiversity in their organisation. And case law is stacking up, demonstrating the importance of getting it right with your employees who are not neurotypical. Seamus takes you through best practice, and recent cases that need to be on your radar.

2. Menopause and the workplace

8th March is International Women’s Day and we’re talking about something that will happen to all women one day – menopause. Women make up nearly 50% of the working population in Northern Ireland and with the change in pension age, it's likely that more women will be working later into life. So, employers need to consider how they can support women in the workplace, so they can hold on to their experienced staff members. Seamus talks you through the guidance, best practice and caselaw to be aware of.

Please note that the employment law matters discussed in this webinar apply primarily to Northern Ireland.

Recording:

Transcript:

Christine:  Morning, everyone, and welcome to Employment Law at 11 sponsored by MCS Group. My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island. I'm joined as usual by Seamus McGranaghan, Director of Employment Law and Solicitor at O'Reilly Stewart Solicitors. Seamus and I worked together many moons ago, and now we get together every month for a bit of a chat with you lovely lot.

 So what are we talking about today? We're having a bit of an Equality Matters special today. First thing we're talking about is neurodiversity in the workplace. It's very timely given the publication of the Buckland Review of Autism Employment released on Wednesday this week, and also the decision in the Peter Kelly Court of Appeal case taken by the Equality Commission, which was published just yesterday. So more on that later. 

Secondly, we are talking about menopause and the workplace. So 8 March is International Women's Day and we've decided to talk about something that will happen to all women, menopause.

Women make up nearly 50% of the working population in Northern Ireland. A change in pension age means that everybody's going to be working later in life. So employers need to consider how they can support women in the workplace so they can retain these experienced staff members. We're going to talk you through best practice, a bit of guidance, and some case law just to be aware of.

 So thanks, as always, to our sponsors MCS Group. MCS help people find careers that match their skill sets perfectly as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.MCSGroup.jobs.

As usual, we are going to kick off with a couple of polls to get you guys involved. So let's have a look at those polls, Maria, when you're ready, if you could bring up the first question.

How confident would you be in supporting the needs of neurodivergent individuals at work? If you can click on the appropriate answer, and that's very confident, somewhat confident, or not confident at all, we'll get to see how you're getting on with that.

We've got 66% saying somewhat confident. Now, I'm wondering whether that's kind of bringing in your usual discrimination type training, Seamus, that people are applying that to their neurodivergent colleagues.

Seamus:  Yeah, that's interesting that it's 66%. I think probably people do. We're so much more aware now in relation to sort of conditions around neurodivergence.

Not confident at all, that was 28%. So that's still quite a high number. And only 7% being very confident, I find that really interesting.

It's good to see that people would have some confidence in dealing with it, because I think that there is a real worry on both sides. I think there are worries for employees making disclosures about any conditions or neurodivergence that they may have, and then equally I think it does worry employers where employers feel automatically, "Oh, this is a disability". It may be, it may not be, and there's panic around it. And I think sometimes, as some of the case law will show as well, it's just not handled properly.

So, it's good to see that we've almost two-thirds there that are saying that they would be reasonably confident in dealing with these matters.

Christine:  Brilliant. Thanks, Seamus. Let's have a look at the next one there, Maria. Thank you.

Do you have specific training on neurodiversity? So we've got yes, no, and kind of, it's included in our general discrimination training. I think I gave away earlier what I think most people are doing, but let's see if I'm right.

Let's have a wee look. So we've got 56% saying no, they don't have the training. Twenty-two per cent saying they have specific neurodiversity training, which is very forward-thinking. And then that matches with the "it's in the general discrimination training". Seamus, is that what you were expecting? 

Seamus:  I suppose I was maybe expecting it to be a little bit higher on the basis that there would be specific training on it. I mean, I think the reality is that within every workplace, there will be individuals that are neurodiverse, whether you know about it or you don't know about it, whether it's openly talked about, whether it's something that is kept hidden, or whether it's something that you suspect.

Often, the issues that come around with that are not necessarily visible, and it's more whenever you're working with someone over a period of time that you might pick up on maybe a different way that they like to work. You might have suspicions around it.

But I think it's very much to the forefront now, and it's interesting that there's just no specific training for 56%. I think within the general discrimination training, I think that's a good starting point.

Absolutely, it's up there. We're talking about protected characteristics. We're talking about disabilities, and those sorts of issues that come around with the discrimination training. So that's encouraging, but it'd be good to see it up there higher.

Correct me if I'm wrong there, and this isn't a plug at all, but I think Legal-Island do provide specific training around neurodiversity as well. 

Christine:  We don't just yet, Seamus. It's in the pipeline.

Seamus:  Very good. 

Christine:  We are seeing more and more questions coming to us about that, so it is in the pipeline. We'll keep you posted on that, but no specific training on that yet.

So third question, Maria, if you can bring that up for us. Same as our first question, but regarding menopause. How confident would you be in supporting the needs of individuals with menopausal symptoms at work? So very confident, somewhat confident, or not confident at all.

We've seen some absolute clangers dropped recently about menopause support in the workplace, so let's see. We've got about half of the people saying somewhat confident, we've got 34% at very confident, and 15% not confident at all.

I was expecting people to feel a wee bit more emboldened on this one, I have to say, Seamus. What do you reckon?

Seamus:  Yeah. Well, 34% for very confident is positive. I think those are good figures. The automatic assumption is that the 15% that are not confident might be all the men that are having to deal with this.

But I think that it is something that we've seen come to the fore over the past, I would say, three or four years. There's much more discussion and talk around it. There are developments in relation to case law. And we know that in England, they've updated their Equality Act now as well from the start of the year.

But it certainly is one that I think every employer is having to deal with at some point, and I just hope that they're dealing with it in the right way.

Some of the case law is worrying, the types of things that have been said in the past and the steps that employers have taken. But certainly, it's a newsworthy item.

I think there was something I spotted last week knowing that this was coming up, and it just came up on the BBC when I was looking through the BBC website. It said firms must help menopausal workers or face being sued. You can see it. The issue is out there. It's being talked about and pushed on. And our own agencies here, the Labour Relations Agency and Equality Commission, are pushing forward with that as well.

Christine:  Yeah. Brilliant. Thanks very much for that, Seamus. So, let's get started on neurodiversity. So this is another area that maybe three or four years ago, we wouldn't have been talking about it at all. It was really very much in the sidelines, but it's being pushed to the fore more and more. It's something we need to be getting our heads around, isn't it, Seamus? 

Seamus:  Yeah, absolutely. I think that the days are gone now of employers having a worry or a concern in relation to certain employees, maybe disclosures being made at interviews or during recruitment. And thankfully, I think the sort of horrible days of really open, direct discrimination are over.

But it's always one that catches me in relation to "What is it to be neurodiverse? What is neurodiversity?" And even whenever I was looking at this, it's really hard to get a good, clear, concise example of somebody writing down what it is.

Ultimately, the best that I've come across . . . and this isn't just one. It comes in four parts. But it's talking about neurodiversity is the term used to describe differences in the way that people's brains work. That's all it is. It's as simple as that.

And the sort of acceptance that everybody's brain is different and the way that we all function is different. There may be what is perceived to be the norm, and there may be a view then that there are people outside of that that just don't compute and just don't sort of function in the same way. But it does refer specifically to diversity in the brain and our cognition, essentially.

And I suppose the neatest way I've seen it is that neurodivergent people experience, interact, and they interpret the world in different ways than what other people may do.

I do a bit of education work for schools, and certainly I think the ability to get a diagnosis is much better than what it has been in years gone past. And I think also that there's a large gap there where individuals haven't been able to get a diagnosis, but because of the knowledge that's out there in relation to certain types of conditions and about neurodiversity in itself, people can very much have an understanding that, "Well, that's the way I am". There's almost this self-diagnosis that happens as well.

And I think it is very difficult in later life to try and get a diagnosis, unless you're going to pay privately, given where we're at with health and all of that.

But the likelihood is you're going to know somebody that's neurodivergent. And as I said earlier, sometimes it's apparent. Sometimes it's obvious. It can be visible. And other times, you know nothing, and you'd be very surprised for someone to eventually tell you that they have a sort of related condition.

Then there's that aspect sometimes when you're working with somebody over a period of time, you maybe have a suspicion about it. But what you'll find is that that person has really special skills, their ability to bring additionality in relation to your workplace. They'll be your go-to person for specific projects or whatever it is.

So just some of those conditions that we talk about, and this is by no way an exhaustive list at all, but people that maybe suffer from autism, ASD, ADHD, dyslexia, and dyspraxia are sort of the broad list. But as I say, that's not divergent.

I would say the research is that you're talking maybe as much as 1 in 5 of the population have some form of neurodivergence as well. So it's nothing that you're going to be able to escape as an employer or run away from. And really, what you need to do is have a procedure, have a policy, have training in place in order to deal with it.

But I think that the position around it is that we are all working in our workplaces now and we've got our diversity and our inclusion, our D&I hats on. We're very alive to this.

Some of the stuff that I see coming across my desk, Christine, in relation to it would be issues around suspicions, maybe that there are issues arising in relation to somebody's capability, suspicions around maybe what the employer sees as shortcomings, but they tend to forget about the really strong aspects that the employee brings as well.

Also, I would see issues around employees coming forward and saying, "Look, just letting you know that I'm neurodiverse, but I'm not giving you any more details about it". And there's a bit of fear, I think, that happens in relation to it.

Or simply the person themselves suspects that they have some form of neurodiversity, but it's never been diagnosed, or they've never been given a proper notification of it sort of through medical advice or anything like that.

So the issues that I see arise and that come across my desk tend to be a fear factor, absolutely, from employers as to, "Oh, we don't know what to do. How do we handle this?" and a panic.

And also, more so I see it's issues where the employee hasn't been wholly transparent in relation to their conditions. They'll maybe say that there is a condition. And sometimes it only comes out after capability proceedings have been started, and then it shows up.

I was reading through some of the case law there, and it isn't a situation in and around with disability discrimination because you have these invisible disabilities that happen. It isn't a situation that an employer needs to be aware of the disability in order to discriminate. But also, there's a point then where the employer should or ought to have been aware, and those issues that arise.

And sometimes I hear this saying of, "Oh, we'll just leave that. We'll not get into it because I suspect that that employee has X, Y, or Z. But they never confirmed it, so I'm just not going to ask any questions about it and then I'll be in the clear". And that's not the position because then you're in the whole indirect discrimination aspect and everything else.

The reality is I think we have to face up. We have to be realistic. If it is as much as 1 in 5 in the population that are neurodiverse, we are going to be working with people, we're going to have people in our places of work that we need to provide assistance to in relation to it.

So for me, it's very much about the education, the training, the preparing, the assistance.

In saying that, I don't think it's anything for anybody to worry about, to panic about if they suddenly find out that they have an employee who's neurodivergent. There's real positivity and real upsides to a neurodivergent employee.

Looking around, some of the statistics show that people that are neurodivergent can be as much as 30% more productive within the workplace. There's a 90% retention rate because there's a loyalty that comes along with neurodivergence. You have a wider talent pool to select from.

Just before we come on there, we were talking about the difficulties of staff recruitment and retention. There's a fantastic wealth and a pool here of neurodivergency that employers can get really brilliant benefits from. So it's that aspect of anybody who's neurodivergent bringing their special skills that you as an employer require and what you want to seek out.

 And I think some of the stuff that I read, especially in tech and sort of aerospace and even somewhere around the sort of MI5 jobs, they've been actively looking for . . . and Ministry of Defence and stuff like that as well, looking for these specifically trained individuals that bring so much to the table just because they have a different thinking pattern and can bring a different way of thinking and looking at things. So it's about the innovation and the creativity, the enhanced problem-solving that comes along with it.

Interestingly then, as well, I was reading an article that Lewis Silkin had looked at, and they'd done some research in and around risks for employers and the Tribunal cases that have been brought.

And just as a by-side, this came from Lewis Silkin that said that in between 2018 and 2022 in Northern Ireland, they were able to cast that there was 19 cases specifically around neurodivergency in Northern Ireland. That was in comparison to the period of 2003 to 2017, that 14-year period there had been eight cases in total. So you can really see how the issues are coming to the fore.

And I suppose it's the expectations now of tribunals and what we expect HR advisers to be able to deal with and tackle through training, through openness, through transparency, in relation to their neurodivergent employees.

This isn't always the position, but the likelihood is much higher that a neurodivergent person is going to be disabled for the purposes of our discrimination laws.

So under our 1995 Act, you have the potential that you'll get somebody with protected characteristics, and that you will need to look at things like reasonable adjustments, adjustments to their working patterns.

And I think some of the stuff that I had looked at included that ability for things like checking in with employees. It's about the education and awareness, looking at flexible working arrangements, and having clear communication, sort of sensory-friendly workspaces. But that neurodiversity training is really important.

And I think you sort of see the case law progressing here and leading up to . . . We'll get on to in relation to the Court of Appeal case, and just how important that's going to be.

It's similar to the other stuff that we talk about frequently in relation to harassment and bullying and discrimination in workplaces, things like mentorship programmes, allies in work, and making those accommodations for your staff and that when they need them.

A big part of that always has to be, I think, sort of the inclusion of medical assistance and medical advice. And whether that is through occupational health or through a specialist, medical advisory, consultant, or whatever it is, I think that those open discussions need to be happening between the employee and the employer. It's nothing for anybody to shy away from. This is about educating and then making those reasonable adjustments.

And sometimes, it is medical advice, but the other really good one is if you have an employee, you don't know much about their condition, and you can't get resources in relation to it, reach out to one of the charitable partners for that specific condition. You'll find that the likelihood is that they will have somebody that specifically deals with employment side and giving advices.

Now, it just takes me back to . . . we looked at neurodivergence before, and there's a prior podcast that we did back in October 2020. Louise McQuillan of Texthelp was on that podcast. And if anybody wanted to go back and listen to it, they're free to do that through our various platforms that our podcasts are on.

But that was a really brilliant session. Louise was giving us information about how information can be given to employers and assistance through technology to help employees along the way in relation to it.

Maybe I want to just have a quick sort of run-through of some of the case law because I want to get to the point of the Court of Appeal case.

But recent cases there. There's a case of Morgan v Buckinghamshire County Council. It's an Employment Appeal Tribunal case from 2022. And this was a social worker who worked for the council and had been giving gifts and letters to children that she was working with. This was deemed inappropriate by the employer, and she was dismissed.

Employer was taken for unfair dismissal proceedings. And it's an odd one because the Tribunal looked at it and ultimately said that there was a justification because there was risk in and around a social worker giving gifts and letters to children that they were working with.

Ultimately, they found that this wasn't related to the employee's disability, but they did find for harassment in relation to it because there were specific comments that were made by the employer around the conditions themselves.

So it's not always a clear-cut case of, "Oh, there's a disability here. Therefore, they're going to make a finding for us".

Similarly, the case of McQueen v The General Optical Council, this was an employee who was dismissed for rude and aggressive behaviour. The employee said, "That's part of my neurodiversity. It's part of a disability that I have". And the Tribunal said, "No. This is down to the fact that you have a short temper and your personality rather than your disability".

Now, there was lots of medical evidence that was provided, but bear that one in mind for when we come to talk about Kelly here shortly.

Another case, a 2003 Employment Tribunal case in England. This is a sort of well-known, publicised case of Borg-Neal v Lloyds Banking Group. This was a manager in the Lloyds Bank, and it was during race awareness training that the manager had used the "N" word and was subsequently dismissed.

Took a claim in the Tribunal and said his disability was impeding his ability to properly express himself. And the Tribunal did find in favour in that one for the claimant, and the award was almost £500,000. So really significant award in relation to it.

There's another case of AECOM. I think it's going to be AECOM v Mallon. It's an Employment Appeal Tribunal case of 2023. This was where there was a dyspraxic employee who had asked for . . . Or rather than an employee, it was during a recruitment process and had asked for adjustments to be made in respect of the recruitment process that the employer refused to provide. And ultimately, there was a claim brought, and the employee was successful.

There was an ASD claimant in the case of Duncan v Fujitsu Services Ltd as well, where they said that they could only communicate through email or through letter or some sort of written correspondence, and the employer, Fujitsu, was insisting that there had to be oral discussions. And again, there was a finding that there was improper adjustments made.

Really interesting one there, Rackham v Judicial Appointments Commission, which was a claimant with ASD and Asperger's syndrome. It was around a judicial appointment and adjustments that the employee had requested that the Tribunal found weren't reasonable, despite the fact that the employee had other disabilities.

And then there's that recent case of Morrow v DAERA. Not necessarily a neurodivergent case, but that was a recruitment process for a park ranger in Crawfordsburn Park who had hearing impairments. Again, through that recruitment process, there weren't proper reasonable adjustments made, and there was a £50,000 award made in relation to that one.

So it brings us up to that case yesterday that we received from the Court of Appeal of Kelly. And it's an interesting case. I've read the judgement on it. It's a 28-page judgement from the Court of Appeal, and the decision was very critical of how the Tribunal dealt with the case.

So, again, we have a situation where the claimant worked in the Department for Communities, Department of Finance, and the claimant had said that he had a mental health disability. No diagnosis of a specific type of condition related to that.

But ultimately, I think the position of the respondent was that there were various types of conditions, but that it was never actually defined as autism. And the Tribunal seemed to support that view in its outcome to say that there wasn't a disability here because there wasn't a defined terminology of autism given. The Court of Appeal were very critical of that finding from the Tribunal itself.

And it's interesting because there were two well-known psychiatric doctors involved in the case, one for the claimant and one for the respondent. But ultimately, the Tribunal hadn't found for the claimant, and the Equality Commission backed the appeal to the Court of Appeal.

Ultimately, I think there was two interesting points. One, obviously, in and around the fact that you don't need to have a defined diagnosis in order to be successful with a claim for discrimination.

But in addition to that, the Tribunal seemed to have spent time around the fact that the claimant could do work outside of his job relating to emails and correspondence, and the Court of Appeal have been heavily critical of the Tribunal in and around that.

There was a lot to do with the length and the complexity of these documents that the claimant supposedly was able to do outside of work, and the Tribunal was saying that didn't follow into why he couldn't do them in his place of work.

So interesting stuff in and around that. It has been sent back to the Tribunal, essentially, for the Tribunal to rehear the case. I think there were four points in the case, and the first one was whether he qualified as disabled or not. And now he'll go back to deal with that.

But interestingly, they said in the conclusions that the evidence before the Tribunal was inconsistent with and contradictory of their determination. And they said that there was a straightforward error on the basis that the appellant had to have a diagnosis of autism as defined in the Autism Act in 2011 in order to succeed.And all three said that the Tribunal placed irrational weight on its own assessments of the appellant, particularly on documents compiled outside of the working environment with the considerable assistance of another person. So it's interesting there in relation to how that's been moved on.

I did read the statement that the Equality Commission had issued about the case as well. But it's a digestible enough read and I think it's a good one for somebody to take a read through.

Christine:  Yeah. Interesting that the Tribunal got it wrong because they didn't understand neurodiversity enough. So there really is no shame in it. We're all learning about this, but it's interesting that even in a Tribunal, there was that gap in understanding really about these conditions, wasn't there?

Seamus:  Yeah.

Christine:  I'm just mindful of the time, Seamus. I'm going to do a wee bit of a wrap-up of my takeaways on neurodiversity.

So first one, really, is having a diverse workforce enhances your organisation. You get a diversity of perspectives, and it'll increase employee engagement and retention. That's why this is important.

Secondly, it's important not to stereotype. We need to treat everyone as individuals. Not everyone with a given condition will have the same requirements.

And thirdly, being open-minded and flexible about how you communicate information is normally a good starting point. That might in itself be enough to help your neurodivergent employees, but if not, it also opens the gates then for them to talk to you about reasonable adjustments and for you to identify them.

Somebody has dropped into the chat a very helpful comment, which is the CIPD have published a Neuroinclusion at Work report. So hopefully, Maria, if you could drop that wee link into the general chat, we can see that. You might have already done that, Maria, so apologies if you have.

And someone else is asking, "Does Legal-Island have a course on neurodivergence?" We don't yet, but it is being worked on, and you will be the first to know once it's up and ready to go.

So if we move on to our second topic then, Seamus, menopause. I mean, I think it's a really important one for women, basically. Pregnancy and maternity don't affect all of us, but menopause is coming to us all, and employers need to start getting to grips with it.

There was a bit of a storm over in England. I can't remember the name of the company. I think I remember, but I don't want to name check the wrong company. They had a bit of a nightmare.

They sent out a menopause pack to their female employees, which was extremely . . . Well, it was not well received, let's say. They had a paperclip in it to help you hold yourself together, some Jelly Babies in case you wanted to bite someone's head off, a hand fan. It was just, I think, a 101 on what you shouldn't do with menopause. And their defence was, "Well, it was a woman that came up with it".

So, yeah, big issues around it, isn't there, Seamus? 

Seamus:  Yeah, and again, something that we've had a lot of press coverage in I think from around 2020, 2021. I know Marie-Louise Connolly, who's the BBC Northern Ireland Health Correspondent, has been very open about her position on menopause and that really, I think, kick-started a discussion in and around it.

I mean, the reality is it's a natural stage in life for a woman. Some of the issues that come out are that they talk about generally it happens between 45 and 55, but it can also happen much earlier than that, and it also can happen much later.

I think sometimes employers, when it happens to younger employees, there's a scepticism, and if there's a dip all of a sudden in productivity or capability, I think it's a difficult job then to convince employers this is the reason for it. And they end up with the argument of, "Well, I have to go and get a medical report, and that's unfair", and all of that sort of stuff.

So I think there just has to be an acceptance that this is a reality of life, and it brings some challenges along with it. I think some of those challenges, that I've read about anyway, can be physical challenges. They can be psychological, emotional.

Some of them can be very severe and impact everyday activities and can certainly fall in . . . I mean, it is entirely possible that if it doesn't bring you into the realms of disability, and a recognised disability, that there are certainly conditions that arise from it that can bring you into that bracket.

But interestingly, just when you mentioned the previous one about the CIPD, they have done some research, and 67% of women working between the ages of 40 and 60 with experience of menopausal symptoms said that it had a mostly negative impact on them in work.

And the types of things that they were talking about, 79% said that they were less able to concentrate. Sixty-eight per cent had experienced more stress. Forty-nine per cent, which is nearly half, had said that they felt less patient with their clients and their colleagues, and 46% felt less physically able to carry out their work tasks. So you can see that it's a significant impact that can happen.

Our benefit here that we have in Northern Ireland is . . . I think that it's clear now that you need to have a policy and procedure in place in respect of menopause and how it's dealt with.

And it's more than just simple guidance of, "Allow the employee to sit near a window so that they can open it up if they get hot", or, "Give them cold water, that we've got cold water on tap for them", and things like that. It's more than that. I think as we get educated and these things are talked more openly, there's a better understanding.

But there's a really good guidance piece. NI Business Info have a really good one online as well, but the really good one, I think, is the Equality Commission and the Labour Relations Agency. It's "Promoting Equality in Employment for Women Affected by Menopause in the Workplace". So there's a guidance piece out there already for it, and it is something that we hear regularly on the news.

And I was just looking . . . it happened to come up, this one about "Firms must help menopausal workers, or face being sued". This was the Equality and Human Rights Commission in England. They had said that there were legal obligations that came upon employers as a result of menopause.

But it did say that research showed has that 1 in 10 women surveyed who worked during their menopause were forced to leave their job because of their symptoms.

Christine:  Yeah. Really shocking.

Seamus:  One in 10 in a period of time when you're trying to retain staff. And the likelihood is that this member of staff would be somebody that's vastly experienced and has specific skills that you require. So it is about flexibility.

They also said that two-thirds of women between the ages of 40 and 60 had experienced sort of a negative impact in their workplace as a result of menopause.

And they specifically said that taking disciplinary action against a woman for a menopause-related absence could amount to discrimination, and that language that ridicules somebody's symptoms could constitute harassment. That bears fruit, I think, in some of the case law that we have and that we see comes out of it.

But the guidance there that's from the Equality Commission, LRA, and then there's Irish Congress of Trade Unions input as well through a Northern Ireland committee, it talks about things like being inclusive and having a welcoming environment, understanding the employee, and understanding the circumstances.

It might mean that there are lower rates of absenteeism, higher rates of productivity, and that you'll get more staff loyalty if you're bringing about policies and procedures here to assist and help your employees. 

It also talks about your health and safety legislation as well and tying in with specific requirements that could come around as a result of menopause.

But they talk about also the various legal duties that are imposed on employers. So it's ensuring that menopausal symptoms are not made worse by workplace conditions or work practices, making changes to help employees manage their symptoms when doing their work.

And then this idea of conducting risk assessments, which should include things like the temperature and ventilation in the workplace, materials that are used in uniforms, making sure that uniforms aren't too restrictive, and maybe having adjustments to your uniform policy for employees that are going through menopause.

Restroom facilities is another one that it talks about. And it's a side note, but I did see during the week that the Bar Library in Northern Ireland had pictures showing their breastfeeding room. Slightly different, but you can see how advanced it is, pictures of the room that female barristers can use for breastfeeding or for extraction or whatever it is that they need to do. So it's something similar to that idea as well.

Toilet and washroom facilities being easily accessible for employees and making sure that you've got cold drinking water and stuff like that.

It talked about potential discrimination happening around sex, around disability, and about age. Those are the three factors that I think you're looking at on your protected characteristics.

And just an awareness that if you fail to respond to the needs of employees that have symptoms, it could be viewed as direct or indirect discrimination or a failure to make reasonable adjustments.

Ensure that your policies themselves are implemented fairly and consistently, and ensure that everybody that has management responsibilities are familiar with the policies and that they've had appropriate training in relation to that also. I think those are the protections and the best guidance that you can have for practice around that.

Wanted to sort of maybe just mention a couple of the case law that has been about.

So there's a 2012 case of Merchant v BT, and Mrs Merchant was challenged in relation to performance issues and capability concerns. Management had received a report from her GP, which indicated that there were health issues arising as a result of menopause. The manager chose to disregard the medical evidence and went ahead and dismissed Mrs Merchant for poor performance.

And interestingly, in that decision, it recorded that the manager had made his own assumptions and used his own personal experience of his wife having undergone the menopause.

Christine:  Yeah. I don't know if his explanation was choice, I have to say.

Seamus:  Yeah. And what the case said was rather than relying on fresh medical evidence, he'd relied upon anecdotal evidence, and the Tribunal found against BT. They said that the manager failed to follow a proper capability policy, which referred to seeking medical evidence. And it concluded that BT wouldn't have treated a male in a comparative set of circumstances in the same way. So that was the first of the cases.

There's a second case of Davies v Scottish Courts and Tribunals Service of 2018. This was a perimenopausal employee, and it's an interesting one in that she had a sort of granulated medication that she was putting into her water. She was essentially a court clerk, and she briefly left the court, two males were seen drinking water, and I think she panicked slightly in that they had drunk her water with her medication in it.

There was a health and safety review that was followed. Disciplinary action was brought against her, and it concluded that she hadn't shown any remorse and hadn't shown the values of the organisation in the way that she reacted. I think that she had spoken to them quite strongly whenever she came in and noticed that they were drinking water.

It turned out anyway that it wasn't her water that they were drinking. There was a slight pink tinge to her water that the medication gave, and that's how they were able to make the distinction.

But she was dismissed for gross misconduct, and this was despite an occupational health report that confirmed she had perimenopausal symptoms, which affected her memory and her concentration.

What the Tribunal said was that the employer clearly failed to take into account the evidence and the impact that menopause had had with regard to her behaviour, and she was reinstated. She was awarded £19,000. Fourteen thousand pounds was back pay, and £5,000 was an injury to feelings. 

And the third case is a more recent one of 2019, which was a case against the retailer Bonmarche. It's now, I think, closed in liquidation. The claimant was a senior supervisor. She worked there for a long time, but our manager had started a bullying campaign and ridiculing her as she was going through the menopause and referred to her as a dinosaur and encouraged other staff to laugh at his comments. Fairly difficult stuff for the employee.

And then there was a restructure that took place. The claimant's post was unaffected by the restructure, but as a result of the restructure, then, was put on sort of on full shifts. Previously, she'd been working on part-time shifts. Ultimately, she resigned.

Suffered a complete breakdown due to harassment and bullying, but she was successful. She brought claims for age and sex discrimination against the employer. She was awarded £28,000, £10,000 for loss of earnings and £18,000 on injury to feelings, and that was as a result of what the Tribunal termed as serious bullying and harassment that she'd suffered by her manager.

So I think that the cases show that employers do need to be careful around employees.

I mean, I know I have cases that have come across my desk before where there is banter among the female employees in relation to menopause and banter amongst females that are in the same age bracket that don't necessarily involve younger employees.

And sometimes whenever that is noted by male employees . . . I had a case where male employees then joined in the banter and thought it was funny too. But then there was exception taken to it and it was taken too far and having to deal with those issues.

What it comes down to, I think, is two things. There needs to be a policy and procedure in place, and maybe, like some of our polls, that does form part of your discrimination training that you'll give.

But I think if you ended up with a Tribunal case involving issues around menopause where you haven't sort of met the mark, an employee is not going to have much sympathy because it is something that we read and we see about. There's been great promotion of the LRA and the Equality Commission's policy and procedure.

So, these issues are out there, and it's not going to be enough to come along and say, "Well, it's an embarrassing, challenging topic to discuss", and stuff like that. That's just not going to be acceptable any longer, I don't think. 

Christine:  Brilliant. Thanks, Seamus.

I mean, on a personal note, I think the direction it's going, forcing women down the disability route, is a very unusual one. I don't think that all women can be classed as disabled at that certain stage of their life. It's certainly something I wouldn't want to have to say in a Tribunal.

So I would hope that menopause will get its own protection as a characteristic on its own, instead of us having to gerrymander these cases, sex, age, disability all thrown in to the mix. I think it would make much more sense. But that's me off my soapbox.

I'll sum up now, Seamus, my real takeaways on the menopause topic.

Firstly, treat women as individuals. Don't assume symptoms because you, your partner, your friend, your next-door neighbour, whoever it may be, has been through it. Everyone is going to experience menopause differently.

Secondly, because it's been a taboo for so long, people are often tempted to trivialise or joke about the symptoms. Even women do this. It's not acceptable in the workplace, and this should be made clear.

And thirdly, have a dedicated menopause policy. Circulate it widely and ensure managers are trained in its implementation.

On that note, Legal-Island does have a menopause course that you can undertake in our eLearning. So, there are some details on the screen now, and there will also be some further details in the email after the webinar.

Obviously, Seamus and I . . . Seamus did name check us earlier. This is all in the podcast, so you can catch up with us on Spotify, Amazon Music, or Apple. And I know a lot of you do, so thank you very much for tuning in. If you're tuning in after the event, you're very welcome.

Seamus and I are on LinkedIn, and we're always up for a chat. So please do give us a follow and drop us a line about anything you would like us to discuss going forward.

Sorry for overrunning a wee bit today, folks, but that's us. We will see you again on 12 April. It's the second week of April because of the Easter break. We'll see you on 12 April for the next webinar. Thank you very much for tuning in.

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