Why employers can no longer ignore menopause in the workplace – Lexology

Sara IbrahimandAnna Lancyconsider the importance of menopause in the workplace and the ramifications it will have for employers in this article for theInternational Employment Lawyer

With menopausal women now the fastest-growing workforce demographic, menopause is no longer an issue employers can ignore. The average age of menopause for women in the UK is 51 and, according to the Office for National Statistics, in May 2021, 72% of women aged 16-64 years old were in work in the UK, while between April and June 2021, 4,459,000 were in the 50-64 age group.

Worryingly, a 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that three-in-five menopausal women usually between 45 and 55 years old were negatively affected at work, and that almost 900,000 women in the UK lost their jobs because of menopausal symptoms.

These figures demonstrate how much work is still to be done in the UK to raise awareness and provide better support to menopausal workers. However, globally, menopause presents an even bigger issue. There are 657 million women between 45 and 59 years old worldwide, of whom 50% are employed and potentially impacted by issues of menopause at work.

In the UK, menopause is not specifically protected under the Equality Act 2010. However, conduct that puts an employee at a disadvantage or subjects the employee to less favourable treatment because of their menopause symptoms may amount to discrimination on the grounds of one or more protected characteristic(s), such as disability (section 6), sex (section 11) or age (section 5).

Of the cases that come before the employment tribunal, menopause-related discrimination claims are most commonly brought under the protected characteristic of disability. Depending on the circumstances, a menopausal worker may also have a claim of unfair dismissal, constructive unfair dismissal, harassment, and victimisation.

It should also be borne in mind that trans men may be affected by menopause and, therefore, have the right to bring the above claims and may additionally be able to rely on the protected characteristic of gender reassignment (section 7) if they are treated less favourably than women affected by the menopause.

In this article we will do three things: provide an overview of the proposed legislative changes to support menopausal workers; analyse the case law concerning menopause-related discrimination claims; and outline what steps employers can take to ensure they support menopausal workers.

Legislative proposals

On 23 July 2021, the Women and Equalities Committee launched a new inquiry aimed at scrutinising the existing legislation and business practices regarding menopause and the workplace. Given the committees concern about the knock-on effects of the menopause on workplace productivity, the gender pay gap, and the gender pension gap, it should be anticipated that legislative change will be proposed.

In the committees first evidence session on 17 November 2021, there were some notable proposed legislative changes. Professor Joanna Brewis from the Open University Business School advocated in favour of enacting section 14 (combined discrimination) of the Equality Act and highlighted that, for most people, menopause involves a combination of sex and age.

Under the present law, it is not possible to claim direct discrimination based on more than one characteristic. The vast majority of cases that have either been through or are going through the tribunal are about direct discrimination. Given menopause clearly impacts workers of a certain age and the fact that combined discrimination claims would significantly strengthen tribunal cases, it would not be surprising if this proposal was adopted.

Also of note, Adam Pavey, a solicitor at Pannone Corporate, advocated for making menopause a protected characteristic as a way of removing the stigma of talking about menopause. He argued the fact that menopause is not a protected characteristic can cause claimants difficulty in the tribunal process. For example, often the employer will put the claimant to strict proof as to their symptoms amounting to a disability.

Assuming menopause did become a protected characteristic, an increased number of tribunal claims is likely. It would be difficult, however, for the legislature to justify making menopause a protected characteristic when other medical conditions are treated as disabilities under the Equality Act. A more consistent approach may be categorising menopause as a deemed disability, such as how cancer is treated.

In light of the fact that menopause affects all women, it is prudent for employers to adopt a clear menopause policy. Evidence submitted by 4Women highlighted that, without support for menopausal symptoms, the UK could lose a staggering 14 million workdays a year.

In October, there was a second reading debate of the Menopause (Support and Services) Bill, in which the government set out its proposals to support those experiencing the menopause. One of the main changes in the Bill would be to exempt hormone replacement therapy (HRT) from NHS prescription charges a vital step to making treatment available to those suffering menopausal symptoms.

Menopause case law

Analysis of figures from HM Courts and Tribunals Service showed that there were five tribunal cases in the UK in 2018 that referred to the claimants menopause. However, there have been 10 in the first six months of 2021 alone. The rise in cases does suggest menopausal workers are feeling increasingly confident to challenge employers. Below we touch upon some of the most significant menopause-related claims.

Disability discrimination

In Donnachie v Telent Technology Services Ltd, the tribunal considered whether an employees menopause symptoms amounted to a disability. Ms Donnachie experienced hot flushes seven or eight times a day, which were regularly accompanied by palpitations and feelings of anxiety. She also experienced night sweats, fatigue, and memory and concentration difficulties. Ms Donnachie was prescribed HRT patches by her GP, which improved her symptoms, but they persisted, particularly when she was under pressure.

Ms Donnachies employer argued that she merely suffered from typical menopausal symptoms and therefore the impact on her was not substantial. However, the employment judge, held that Ms Donnachie was disabled by reason of menopause or symptoms of menopause, stating: I see no reason why, in principle, typical menopausal symptoms cannot have the relevant disabling effect on an individual.

The difficulties experienced by menopausal workers in establishing that their symptoms amount to a disability is illustrated by the recent case of Rooney v Leicester City Council. Despite setting out Ms Rooneys comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal concluded that the effects were only minor or trivial.

Rooney appealed this decision and the Employment Appeal Tribunal (EAT) held that the tribunal had erred in law in holding that [Rooney] was not a disabled person at the relevant time. The EAT found it difficult to understand how the tribunal had concluded that Rooney was not disabled, when the tribunal had not expressly contested the evidence about Rooneys symptoms.

Sex discrimination

In Merchant v BT Plc, Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was going through the menopause, which can affect her level of concentration at times.

In dismissing her, the manager chose not to carry out any further medical investigations of her symptoms, in breach of BTs performance-management policy. The tribunal upheld her claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted this bizarre and irrational approach with other non-female-related conditions.

Age discrimination

There are very few cases argued as age discrimination claims. The most notable case is A v Bonmarche Ltd (In administration), which was also a sex discrimination case. Ms A had worked in retail for 37 years and was a high achiever. Her situation at work changed around May 2017 when she began to go through the menopause. Ms As male manager would demean her and humiliate her in front of other staff who were younger than Ms A and would laugh at the managers remarks. The manager also called Ms A a dinosaur in front of customers and continually criticised her unreasonably.

Ms A contacted higher management regarding her managers treatment of her, but no action was taken. She suffered a breakdown in November 2018 and her manager was threatening towards her when she returned to work leading to her resignation. She made a claim to the employment tribunal on the basis that she had suffered harassment and bullying in relation to both age and sex discrimination, and she was awarded 28,000.

It is evident that tribunals are treating menopause symptoms seriously and employers may want to do the same to avoid litigation and a negative impact on workplace relations.

Best practice support

The duty to make reasonable adjustments under section 20 of the Equality Act arises where a disabled person is placed at a substantial disadvantage by a provision, criterion or practice; a physical feature of the employers premises; or an employers failure to provide an auxiliary aid, compared with persons who are not disabled. It requires an employer to take such steps as it is reasonable to have to take to avoid any such substantial disadvantage.

When considering the situation of a woman with menopausal symptoms, possible reasonable adjustments might include amending absence management triggers; working from home, moving the employee closer to a window or ventilation system to increase their exposure to fresh air, or providing an electric fan; allowing the employee to adapt a uniform; allowing more rest breaks; moving the employee closer to toilet facilities and where a menopausal worker works night shifts, a move to daytime hours could be a reasonable adjustment.

Employers should also consider introducing a menopause policy that encourages menopausal workers to have open conversations with managers about any symptoms they are experiencing and the specific steps that could be taken to alleviate those symptoms. The written document should be circulated throughout the workplace and outline typical menopause symptoms while also recognising that the symptoms of individuals can differ greatly.

The policy should include the support available to menopausal workers and a sickness absence policy which accommodates workers experiencing menopause transition (ie, similar to a maternity leave policy). Channel 4 launched its menopause policy on World Menopause Day 2019 the policy is freely available on its website.

Finally, employers should train and upskill the entire workplace but specifically line managers with knowledge about menopause so that they are better equipped to provide support to menopausal workers. This could include organising training and events so that employees can develop an understanding of the symptoms and effects of menopause.

Read the rest here:
Why employers can no longer ignore menopause in the workplace - Lexology