Menopause in the workplace

The Menopause

The menopause generally occurs in women between the ages of 45 – 55, with the average age in the UK being 51. For many people symptoms last about 4 years, but in some cases symptoms can last much longer. There are 3 different stages to the menopause; perimenopause, menopause and postmenopause.

As a natural part of the aging process, all women will go through the menopause at some point in their life. Menopause can also impact trans and non-binary people who may not identify as female. Many will experience symptoms that have an impact on their day-to-day activities, including work. The symptoms of menopause can vary in severity and can be physical (for example, hot flushes, heavy periods and headaches) and psychological (for example, difficulty sleeping, memory loss, confusion and depression).

Whilst there has been some progress in recent years, it’s still clear that more needs to be done to ensure it is no longer held taboo. Various surveys carried out show that, historically, women have been (and remain) somewhat reluctant to discuss this with employers for a range of reasons.  This has a knock-on effect and can lead to a reluctance to apply for promotion or take on extra responsibilities but can even cause some to reduce their hours of work, seniority or even to look to leave their jobs entirely.

Simply raising awareness of menopause in the workplace will only go so far. Employers should be doing what they can to create a culture of trust and openness and should look to how they will handle such conversations to ensure these are dealt with both sensitively and confidentially.

As women over 50 are the fastest growing demographic of employees with significant skills, knowledge and experience, it is really important for employers to be aware of the potential impact the menopause might have in the workplace and what they can do to support those impacted by it.

Not only is it the right thing to do – there’s clear benefits to a business in retaining and promoting valued, highly skilled and experienced team members. The costs to a business of getting this wrong is also something that should be considered.

The Law

Currently, there are no specific protections covering the menopause itself. The menopause it not a protected characteristic under the Equality Act 2010 (EqA) and there are no other targeted legislation that specifically covers this either.

Notwithstanding this, there have been an increased number of Tribunal claims which do cite the menopause. Given the lack of specific legislation that protects those going through the menopause  these claims would have to fall within the parameters of existing protections. For example;

Unfair dismissal

An employer can only dismiss an employee with over two years’ service for one of five potentially fair reasons; Capability, Conduct, Redundancy, Illegality and ‘Some other Substantial Reason’. In doing so they would also need to ensure that a fair procedure is followed.

A common area where employer get this wrong is in connection with capability as a reason for dismissal. Case law has repeatedly shown that employers should take medical information into account where ill-health has been raised by an employee. So, where an employee is suffering with menopausal symptoms, employers should take this into account when making any decisions during any such procedures. It’s also worth remembering that the aim of a capability procedure should be to facilitate and encourage improvement – employers should therefore consider what adjustments can be made to support this.

Constructive Dismissal

Constructive dismissal is where an employee resigns in response to a fundamental contractual breach by the employer. Again, an employee will need two years’ continuous service to be eligible to pursue such a claim. Depending on how the employer responds to an employee experiencing the menopause or where a grievance has been raised alleging unfair treatment and this isn’t appropriately investigated, this might be seen as a breach of the implied term of trust and confidence leaving the employee free to resign and claim that they have been constructively dismissed.

Discrimination

There are three main types of discrimination: direct discrimination, indirect direct discrimination and harassment. Direct discrimination is where an employee is treated less favourably because of a protected characteristic. Indirect discrimination is where a provision, criteria or practice is discriminatory in relation to a protected characteristic. Harassment is defined as unwanted conduct that has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment.

The common protected characteristics relied on include:

• Age

Given that the menopause impacts women of a certain age, there is a risk for an age discrimination claim if employers are not mindful of their treatment of such staff and where that treatment puts them at a disadvantage, where they are treated less favourably because of their age or where comments are made that are offensive or humiliating.

• Sex

Unfair treatment to an employee because of their sex could lead to a sex discrimination claim. Employers should also be aware that unwanted comments or behaviour about someone’s menopause symptoms could count as harassment or sexual harassment depending on the nature of such behaviour.

• Disability

Menopause is not considered a disability but many are left to rely on the protections afforded by these provisions. A person has a disability if they satisfy the definition under section 6 EqA i.e. a physical or mental impairment that has a substantial and long-term (lasts or likely to last 12 months or more) adverse impact on a person’s ability to carry out normal day-to-day activities. Therefore someone suffering with severe symptoms are likely to fall within this definition.

Under disability discrimination there are two other considerations to employers:

• Discrimination arising from a disability under section 15 EqA. Here, a person is treated unfavourably because of something linked to their disability. For example, receiving a warning for menopause related sickness absence.
• The duty to make reasonable adjustments to remove or alleviate any disadvantages suffered by those with a disability. This covers a range of actions and might involve employers providing desk fans, permitting time off for GP appointments and/or recording absences related to the menopause differently.

Health and safety

Employers have a legal duty to ensure the health, safety and welfare of their employees. Employers may need to carry out the necessary risk assessments and to consider whether adjustments to working conditions might promote the health and well-being of those suffering with symptoms of menopause.

Reform:

The case law in this area can be quite inconsistent and there are various hurdles to overcome in terms of being eligible to pursue some of the claims listed above. For example, needing two years’ service to qualify for an unfair dismissal or constructive dismissal or needing to satisfy the definition of a disability to be protected from discriminatory treatment when suffering from menopausal symptoms. The health impacts of the menopause for some can certainly be serious enough to satisfy the definition but for others, this might not be the case. That said, some query whether it’s even appropriate for the menopause, which is a natural stage in life for women, to be considered a disability.

As it stands, however, it is not actual or proposed government policy to introduce the menopause as a new protected characteristic.

Top Tips for employers to help manage menopause at work include:

• Create and implement a menopause policy. Ensure this is a working document, don’t just leave it to gather dust on a shelf somewhere. Ensure this is communicated to all staff so everyone knows and understands it. Seek feedback from staff as to how this might be improved.
• Provide training for managers so they feel comfortable in dealing with any concerns in a sensitive way. This will in turn assist with creating a culture of trust and openness. Employers and line managers are not expected to be medical experts – a good level of knowledge, understanding, support and compassion will be sufficient but will have a massive impact.
• Make adjustments where appropriate – especially low-cost environmental changes such as providing desk fans etc. Some of the changes might be low-cost but can certainly make a big difference.
• Be aware of employment laws that can relate to menopause issues at work such as the risks of sex, disability or age discrimination

If you have any questions or would like some advice in connection with anything covered in this article, please do not hesitate to contact me on Jamie.Riseley@poolealcock.co.uk