Divorce & Family
We are a leading team of Divorce and Family Solicitors with our specialist divorce solicitors providing expert advice about divorce and separation.
Our property lawyers will explain every step of the conveyancing process, and make it as professional, swift and seamless as possible.
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.
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;
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 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.
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:
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.
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.
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:
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.
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:
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
Share this article:
Estate Agents: have you got your head around the new Material Information
The HSE have confirmed that they have started targeted visits within the
The Family Department are delighted to announce that they have been again