Gaynor Beckett, Employment Law Solicitor at Counterculture explains why introducing menopause support at work is so important.
2 years ago, you’d have been hard pushed to find an organisation with a menopause policy. Since then, there’s been something of a seismic shift, with the topic of menopause gaining traction in headlines, company agendas and the Employment Tribunals alike. More and more organisations are raising awareness of menopause as part of their company culture and understanding the need to put the right menopause support in place. About time too! Fostering an age- and gender-inclusive workplace will help you tap into the valuable skills and talent. By supporting women through the menopause, your organisation will benefit from increased engagement and loyalty, as well as lower sickness absence and employee turnover.
What is the menopause?
The menopause is a natural stage of life and refers to the time when a woman stops having periods and can no longer get pregnant naturally. The average age of menopause for women in the UK is 51 and usually happens between 45 and 55 years of age, but there is a lot of variation, and it can also happen earlier or later in someone’s life.
There are 3 different stages to the menopause:
• Peri-menopause
• Menopause
• Post-menopause
All stages and types of the menopause are different, and symptoms can vary from person to person, and range from very mild to severe. For many people symptoms last about 4 years, but in some cases symptoms can last a lot longer.
How can the menopause impact work?
Coping with menopausal symptoms at work can be tough and some women are, understandably, reluctant or even afraid to talk to their employer about it. Symptoms can have a detrimental impact at work leading to performance issues or attendance problems. This can lead to capability and conduct proceedings and sometimes dismissal. The Menopause Charity reported that 10% of women who are in work whilst experiencing the menopause leave their jobs because of the menopause.
Menopause at work is covered by legislation to protect employees.
Presently, discrimination claims relating to the menopause must fit within the parameters of current legislation, there is no targeted legislation specifically related to menopause.
Many menopause charities have called for specific legal protections similar to those awarded to pregnancy and maternity in the workplace. In July, 2021 the Women and Equalities Committee launched a new inquiry aimed at reviewing the existing legislation and business practises regarding menopause in the workplace. The review will examine whether the current legislation goes far enough to protect women going through the menopause and whether menopause should be added to the Equality Act 2010 as a protected characteristic.
The current legislation is:
• The Equality Act 2010, menopause is largely covered under three protected characteristics: age, sex and disability discrimination.
• The Health and Safety at Work Act 1974 provides for safe working, which extends to the working conditions when experiencing menopausal symptoms.
Defining Discrimination Under Employment Law
There are two main types of discrimination: direct and indirect.
• Direct discrimination is where an employee is treated less favourably because of a protected characteristic, so in the case of menopause, it is likely to be disability, sex or age.
• Indirect discrimination is where a provision, practice or criteria is discriminatory in relation to a protected characteristic. So where a neutral policy applied to all, e.g. fixed start and finish times, puts women at a particular disadvantage compared with men and can’t be justified.
A person has a disability if they have a physical or mental impairment, and this has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ‘Long-term adverse’ is 12 months or more. With this in mind, we can see why many of the cases related to menopause will be brought under the strand of disability.
Under section 15 of the Equality Act, if someone is treated unfavourably because of something linked to their disability, an employer must consider reasonable adjustments to remove or minimise disadvantage.
Decided menopause employment tribunal cases
There have been a number of employment tribunals brought about, and won in favour of the claimant, on the grounds of menopause discrimination.
A v Bonmarche Ltd (2019)
This most recent case which was won on the grounds of both sex and age discrimination
The claimant was a senior supervisor at the retailer and had worked there a long time. Her manager started a bullying campaign, ridiculing her as she was going through menopause. He called her a dinosaur and encouraged other staff to laugh at his comments.
During a restructure, her post was unaffected, yet others were encouraged to apply for her role. She suffered some significant sickness absence but did manage to return to her role on a phased basis working shorter hours. However, the claimant’s manager placed her on a full shift for the following week. She resigned and suffered a complete breakdown due to harassment and bullying she had endured. She was successful in her claim of age and sex discrimination.
The claimant was awarded £28,000, £10,000 was for loss of earnings, £18,000 was injury to feelings as a result of the serious bullying and harassment she had suffered.
Davies v Scottish Courts and tribunals service (2018)
The first case where disability discrimination was found in relation to menopause.
Ms Davies works as a court officer. She was perimenopausal and had significant symptoms. To treat cystitis, she was prescribed granulated medication to put into water. When she briefly left the court, two male court users were seen drinking water. Her jug had been emptied and she reached the conclusion they had been drinking her water. She spoke to them and explained that they were drinking her medication, at which point one of them started ranting.
The Court undertook a health and safety investigation followed by a disciplinary investigation and concluded that Ms Davies had not shown any remorse and had not shown the values of the organisation. She later amended her story to say because her water was pink, she was mistaken as the men had been drinking clear water. Nonetheless, she was dismissed for gross misconduct despite an occupational health report which confirmed that she had perimenopausal symptoms which affected her memory and concentration.
What they had clearly failed to do was take into account evidence of the impact menopause had with regard to her behaviour and concentration.
Ms Davies was reinstated and awarded £19,000. £14,000 of that was back pay and £5,000 due to injury of feelings.
Merchant v BT (2012)
The first known case of menopause being cited as a major factor in an employment tribunal.
Ms Merchant was being performance-managed for capability concerns. Her manager had received a report from her GP which indicated there were health issues related to menopause. He chose to disregard medical evidence and dismissed her for poor performance. He also made the additional mistake of relying on his own personal experience of his wife having undergone the menopause.
Rather than relying on fresh medical evidence he relied on anecdotal evidence. The tribunal found against BT, as the manager had failed to follow the capability policy which referred to seeking medical evidence. It also concluded BT would not have treated a male in comparable circumstances suffering with failed concentration in the same way.
According to the latest UK data, there were 16 Employment Tribunals referencing the Claimant’s menopause in 2020. There have been 10 in the first six months of 2021 alone.
However, going through the menopause does not automatically qualify a women as disabled under The Equality Act 2010. It is very much a matter of fact and degree as to whether the relevant statutory definition will be met, and will be down to the individual claimant to prove in each case. Where an individual does meet the legal definition of a disability, the employer will be under a duty to make reasonable adjustments where the employee is placed at a substantial disadvantage in the workplace because of their experiencing the menopause.
Miss J Donnachie v Telent Technology Services Ltd: (2020)
In this case it was held that menopausal symptoms could amount to a disability for the purposes of the Equality Act 2010, because the symptoms with the intervention of HRT patches would have a substantial effect on Miss Donnachie ability to carry out day to day tasks.
Ms M Rooney v Leicester City Council (2020)
In contrast in Mrs Rooney’s case it was held that the menopausal symptoms the Claimant was suffering from did not have a substantial adverse effect on her ability to undertake normal day to day activities, as such she did not meet the legal definition of a disability, so her claim for disability discrimination had to fail.
The costs of not supporting menopause in the workplace
Either way, the costs and risks associated with defending legal cases are not only costly but there are also reputational costs to consider. This type of case can damage an employer’s standing in terms of being a good and reasonable employer and supporting the health and wellbeing of all employees – not just women.
What can employers do to support women experiencing the menopause?
Introduce a menopause policy to encourage women to discuss any symptoms they are experiencing and to examine steps that could be taken to alleviate symptoms. The policy should recognise that symptoms and experiences of the menopause vary.
• Ensure policies around conduct, attendance and performance are followed in relation to factors arising as a result of menopausal symptoms.
• Ensure menopausal symptoms are not responded to in a way that is inconsistent with the way in which other non-female health conditions are responded to.
• Implement training for management to enable them to provide support to women experiencing menopause symptoms and ensure they have adequate knowledge about the menopause and processes for supporting employees.
• Ensure women experiencing menopausal symptoms have access to adequate facilities in the workplace such as suitable toilet facilities, temperature controls, drinking water and storage for sanitary products.
• Review workplace uniforms to ensure they accommodate changes which may make menopausal women more comfortable.
• Flexible working.
• Ensure staff are aware of the assistance available outside of the workplace such as menopause support groups and charities.
If you would like a review of your staff handbook to include a menopause policy or to discuss anything contained in this article relative to those who you work with, then please contact Gaynor Beckett using the “book an appointment” under her profile above.