Employment Law Update: Menopause, Discrimination & Workplace Disputes

With World Menopause Day falling on 18 October 2021, it seemed apt to revisit this important topic and to consider why the menopause is relevant for your business. We first drew attention to this subject in our article “Turn up the Volume: it’s time to talk about the Menopause”, and looking at the developments in this area, our view is that this conversation needs to get louder.

There is an increasing focus in the UK’s media on the impact of the menopause in the workplace, and the fact that there are currently 12 million women in the UK who are perimenopausal (the pre-menopause stage) or menopausal means it is not a topic that can be easily dismissed.

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Women over 50 are now the fastest growing demographic in the workplace. As women typically tend to be affected by the menopause between the ages of 45 and 60, an increasing number of employees are going to be experiencing menopausal symptoms during their careers. Consequently, employers need to ensure that they are well informed and able to support their employees.

All women and trans-gender men will experience the perimenopause and the menopause at some point during their life. However, the severity, duration and timing of the symptoms will vary significantly from case to case. So what are the symptoms? There are 34 recognised symptoms (which in some cases, can last for up to ten years) these include: hot flushes, insomnia, night sweats, low energy, mood swings, lack of ability to concentrate and focus, feeling anxious, panic attacks, irregular and heavy periods, headaches including migraines, and taking longer to recover from illness.

In addition, there are potentially sex, disability and age discrimination risks of which employers need to be aware. Symptoms will affect women within a certain age bracket, and some or all of the symptoms experienced could fall within the definition of a “disability”.

Looking back at those symptoms – and particularly low energy, mood swings, lack of ability to concentrate, panic attacks and an increase in time taken to recover from illnesses – it’s clear that the menopause can have a significant impact within the workplace, in terms of productivity, engagement levels, attendance levels and sickness absence, which is where employment law comes in.

Many jurisdictions – including the UK, Ireland and Jersey - have legislation in place providing protection against sex, disability and age discrimination. Guernsey has sex discrimination legislation and the proposed new Discrimination Ordinance (which is at drafting stage) will, when approved, see the introduction of protection against disability discrimination. This is likely to come into force in late 2022 together with other phase 1 protected characteristics, with further protected characteristics including age to follow in phase 2 of the legislation in 2024.

Symptoms of the perimenopause and menopause can last a significant length of time, one or more of these symptoms, if serious could fall within the definition of a “disability” and indeed there have already been cases in the UK employment tribunal.

In Davies v Scottish Courts and Tribunal Service ET/4104575/2017e the claimant succeeded in a claim for discrimination arising from disability when her employer dismissed her for misconduct. The tribunal found that her conduct had been affected by her menopausal symptoms which caused confusion and forgetfulness.

In Rooney v Leicester City Council EA-2020-000070-DA and EA-2021-000256-DA, the Employment Appeals Tribunal (“EAT”) held that an employment tribunal erred in striking out the claimant’s disability and sex discrimination, harassment and victimisation claims at a preliminary hearing. In respect of the disability discrimination claim the EAT noted that it was difficult to see how the tribunal could have concluded that the effects that the employee’s symptoms had on her day-to-day activities were only minor or trivial. However, her employer, including occupational health appeared similarly unaware. The case is an example of the difficulties faced by menopausal women in the workplace and challenges that can arise in establishing their symptoms amount to a disability.

There is also a body of case law growing in respect of sex and age discrimination linked to the menopause.

In Merchant v BT Plc ET/140135/11, the claimant was dismissed following a final written warning for performance. Her manager was aware she was suffering from symptoms of the menopause and that this affected her level of concentration. The manager dismissed without carrying out further medical investigations around her symptoms. The tribunal upheld the claimant’s claims of direct sex discrimination and unfair dismissal. The tribunal held that the claimant’s manager would not have adopted the irrational approach he did with other, non-female related conditions.

In A v Bonmarche Ltd (In administration) ETS/4107766/19, the tribunal upheld the claims of sex and age harassment. When the claimant began to go through the menopause, her manager demeaned and humiliated her on front of other staff who were younger. The manager called the claimant a “dinosaur” and on one occasion he criticised her for failing to staple together two pieces of paper and related this to her being menopausal. The manager also refused to adjust the temperature in the shop to take account of the claimant’s requirements.

The increase in tribunal claims connected to the menopause highlights the difficult reality of day to day life for women coping with symptoms.

Worryingly, a 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (“CIPD”) found that three in five menopausal women – usually aged between 45-55 – were negatively affected at work, and that almost 900,000 women in the UK lost their jobs over an undefined period of time because of menopausal symptoms. This shows that there is much still to be done to raise awareness and provide better support to women and transgender men who are experiencing menopausal symptoms in the workplace.

Without action being taken, the risk that the BUPA and CIPD report identified is that we will continue to see women leaving business at a point in their careers where they are likely to be at the “peak of their experience” which will “impact productivity”. We could also see an impact on diversity, as if women who may be eligible for senior management roles leave a business, it provides further challenges for businesses in achieving better diversity at executive levels and could negatively impact a company’s gender pay gap.

In the UK, the House of Commons Women and Equalities Committee recently launched an inquiry into existing discrimination legislation and workplace practices around the menopause. The inquiry sought views on whether further legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause while at work to address gender equality. The call for evidence closed on 17

September 2021 and so we await with interest the findings and what recommendations and/or legislative change may follow.

So what should employers do?

Whilst drafting a menopause policy is a common first response, we suggest that you take a holistic approach by striving to foster an inclusive and supportive working environment for employees through increasing awareness not solely through written policy.

Employers can do this by ensuring managers are equipped and trained to listen and support individuals going through the menopause. Managers should be able to talk and listen sensitively to employees; have knowledge of the menopause and its effects; have an understanding of what support and guidance the organisation can offer; and importantly they should be aware of how employment law relates to the menopause so that they can mitigate legal risk.

Employers should carefully consider how the person’s job role could make their symptoms harder to deal with and consider any reasonable adjustments they could make. For example, employers should: be flexible when dealing with managing menopause related absences; let employees have time off to attend medical appointments related to the menopause; adjust rest breaks; or allow women to report sickness absence to female managers (if possible).

Some organisations have introduced a menopause and wellbeing champion who can act as a point of contact for staff who need advice. The champion could also assist the organisation raise awareness and let staff know where they can find more information.

Supporting and creating a positive and open environment between an employer and someone affected by the menopause can help prevent the person from losing confidence in their skills and abilities; feeling like they need to take time off work and hide the reasons for it; or having increased mental health conditions.

Getting this right will encourage an open and supportive workplace, ensure that employees are well trained and have increased awareness – resulting in a positive working environment, which will in turn help you retain and attract talent. However, the risks if employers get this wrong will be that those experiencing these symptoms will continue to suffer in silence and that employers will ultimately lose women in this age category from the workplace. This will negatively impact both productivity and diversity within their organisations and the trend in discrimination claims being brought will continue - exposing business to reputational damage and legal and financial risk.

So, if your organisation has not yet started this conversation, we would recommend that you put the menopause on your agenda and start this conversation as we do not expect the focus on this topic to change in the coming months and the volume around it will inevitably get louder.

Sarah AshGroup Partner*T +44 (0) 1481 748 935sarah.ash@walkersglobal.com

Daniel ReadPartnerT +44 (0) 1534 700 764daniel.read@walkersglobal.com

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