Menopause and the workplace: time to fast forward change and increase awareness of the steps employers should be taking to support staff experiencing the menopause
Last month the House of Commons Women and Equalities Committee launched an inquiry into menopause in the workplace to examine the adequacy of existing discrimination legislation and seek views on whether further legislation is needed to enable employers to put in place better workplace policies to protect women going through the menopause while at work. So, why now, and what’s the issue?
The fact is that many women experience perimenopausal and menopausal symptoms at a difficult and stressful time in their working lives; symptoms which can last for many years, and which can be severely debilitating leading to under performance, absence, poor mental health and loss in confidence. There’s nothing new here. But with increased life expectancy, raised awareness and conservative estimates suggesting that by 2022, a staggering 1 in 6 British workers will be women in their 50s, it’s plain that this is fast becoming an important workplace issue and employers wishing to be truly inclusive and avoid the negative consequences that come from inactivity, need to have a strategy and procedures in place to tackle the stigma attached to women experiencing the menopause and offering support to female employees at this time in their life. And fast!
There are some legal protections afforded to women in the workplace who are subject to less favourable treatment for reasons relating to the menopause and related symptoms, but that protection is largely contingent on the individual being able to bring themselves under the discrimination provisions of the Equality Act 2010 which will not be straightforward in all cases.
A claim for menopause discrimination under the Equality Act could materialise in one of the following ways:
Sex discrimination, including harassment and/or victimisation: perhaps the most obvious route for an employee subject to less favourable treatment as a result of experiencing the menopause and/or related symptoms, would be to pursue a sex discrimination claim under the Equality Act 2010. In a claim for direct sex discrimination, including harassment, the claimant would need to be able to show that a man, not experiencing the menopause, would not have been subject to the same less favourable treatment. This was exactly what happened in the case of Merchant v British Telecoms Plc when it was found that Ms Merchant had been unfairly dismissed and subject to direct sex discrimination in circumstances where a man would not have been. In that case, the disciplinary manager considering Ms Merchant’s poor performance was dismissive of Ms Merchant’s explanation (supported by medical evidence) that her lack of concentration was a menopausal symptom and decided not to undertake any further investigation of that condition prior to dismissing her.
Disability discrimination: menopausal (and peri-menopausal) symptoms, including heavy bleeding, stress, memory loss, could amount to a disability for the purposes of the Equality Act 2010, just as they did in the case of Davies v Scottish Courts and Tribunals Service (https://www.bailii.org/uk/cases/UKET/2018/4104575_2017.html). With a similar conclusion being drawn in the 2020 case of Miss J Donnachie v Telent Technology (Miss J Donnachie v Telent Technology Services Ltd (England and Wales : Disability Discrimination)  UKET 1300005/2020 (4 September 2020) (bailii.org). However, this will not be the position in all cases, 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. This was highlighted in the case of Ms M Rooney v Leicester City Council where 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 (Ms M Rooney v Leicester City Council (England and Wales : Disability Discrimination)  UKET 2600242/2019 (2 December 2020) (bailii.org)). 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.
Age discrimination: because women experiencing the menopause tend to be in their late 40s – 50s, there may be scope to compare their treatment to that of a younger employee in circumstances where the less favourable treatment is related to the menopause or its symptoms. We are not aware of any successful claims being brought on this basis, but it remains a possibility.
For employers wanting to access help and advice in this area, the British Menopause Society’s website Menopause and the Workplace | British Menopause Society (thebms.org.uk) is an excellent starting point and contains a wealth of insightful information. Recommended next steps for employers could include:
- Creating and implementing a menopause policy
- Providing awareness training for managers on how to deal with concerns in a sensitive way
- Creating an open and trusted culture within teams
- Making changes where possible such as altered working hours
- Implementing low-cost environmental changes such as providing desk fans or temperature control
If you would like any help or advice in this area, or would like to contribute evidence to the inquiry (the closing date for which is 17th September), please get in touch with a member of the Torque Law team at firstname.lastname@example.org