Menopause: the workplace taboo
With Menopause Month upon us and significant recent media coverage on the topic, this Employment Law Now is focussed on the impact that menopause can have in the workplace.
People Management recently reported 16 employment tribunal claims citing menopause in 2020, which was up from six in 2019 and five in 2018. The first six months of 2021 saw ten claims that reference menopause, with a study projecting this to a total of 20 by the end of 2021.
Whilst these numbers are relatively small, they indicate a definite trend. Women feel increasingly empowered to challenge employers who they consider do not understand the impact menopause can have in the workplace and who may not offer enough support.
What is menopause?
Menopause is a natural part of ageing that usually occurs between 45 and 55 years of age as a woman’s oestrogen levels decline. Symptoms can begin a long time before menopause starts (known as perimenopause). Around 1 in 100 women experience menopause before the age of 40. It is important to remember that menopause can also affect non-binary and transgender people.
Menopause can affect people differently, but common symptoms include hot flushes, headaches, joint pain, mood changes, memory loss, impact on concentration and focus, excessive bleeding, fatigue and taking longer to recover from illnesses. In addition to this, typical side effects can include lack of confidence, stress, anxiety and (sometimes severe) depression.
What is the effect in the workplace?
Menopause, unfortunately, remains a taboo topic in many workplaces as well as in society at large. Figures from Acas show that 88% of workers who had experienced menopause felt it affected working life, and around 6 in 10 had witnessed the issue being treated as a joke in the workplace. Forty-seven per cent of women who had taken a day off work related to menopausal symptoms had not told their employer the reason for their absence.
Given this context, it is unsurprising that several complex employment issues can arise. These tend to centre around sickness absence, performance issues, problems caused by inappropriate comments and/or harassment and workplace adjustments.
What are the legal risks?
Menopause is not specifically protected under the Equality Act 2010. Employees who believe they have been unfairly treated due to menopause may bring a discrimination claim based on disability, sex, gender reassignment, and/or age.
In Donnachie v Telent Technology Service Ltd, for example, an employment tribunal found that an employee’s menopause symptoms were substantial enough to amount to a “disability” because “the effect of her menopausal impairment on her day to day activities was more than minor or trivial.”
Conversely, claimants may also struggle to bring successful claims under existing legislation. In Rooney v Leicester City Council, an employment tribunal held that the claimant suffered from a long-term mental impairment that was stress-related and exacerbated by menopausal symptoms. However, it did not accept that it had a substantial adverse effect on her ability to carry out typical day to day activities.
The Women and Equalities Committee recently commissioned an inquiry into existing legislation and workplace practices to ask if enough is being done to address the issue of menopause at work. We await its findings, mainly to see whether it recommends adding menopause as a new “protected characteristic” under the Equality Act 2010.
Employees who are subjected to unwanted conduct on the grounds of a protected characteristic (for example, sex) may have a harassment claim if the conduct violates their dignity or creates an intimidating or hostile environment. For example, in A v Bonmarche Ltd, the claimant’s menopause symptoms caused her male manager to demean and humiliate her in front of staff and customers. She succeeded with harassment claims based on age and sex. In Kownacka v Textbook Teachers Ltd, an employment tribunal made a partial finding of harassment. A managing director showed a lack of insight, sensitivity, and empathy, which created an offensive environment.
3. Constructive Dismissal
If an employer breaches trust and confidence in how it handles an employee’s menopausal symptoms, the employee may also have a potential claim for constructive unfair dismissal.
4. Health & Safety Risks
Under the Health and Safety at Work Act 1974, an employer must, where reasonably practical, ensure the health, safety and welfare of its staff. In the context of menopause, this duty will include an obligation to make appropriate adjustments to the workplace. Employers should carry out a risk assessment to identify the adjustments required. Such adjustments may include, for example, better ventilation or temperature control, easy access to showers and other facilities, the use of a quiet room, access to cold drinking water and the use of more flexible working patterns (including changes to working hours and/or an ability to work from home).
What should employers be doing?
At a minimum, we recommend that employers introduce a workplace Menopause Policy, setting out the steps to support those experiencing symptoms at work. However, to minimise legal risk as far as possible, we would also recommend that employers should:
— Provide menopause awareness training for managers, including listening and sensitively supporting individuals going through menopause.
— Take steps to create an open and trusted culture, including making time for confidential discussions when needed.
— Make appropriate workplace adjustments where reasonably possible.
— Conduct health and safety risk assessments.
— Provide a readily available resource pack for staff.
If you need advice on any of the issues covered in this Employment Law Now or need help with drafting a Menopause Policy, please get in touch.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org