Menopause and work: what you need to know
The average age for a person to go through the menopause is 51 but it can happen earlier or later than this. The most common symptoms of the menopause include hot flushes, difficulty sleeping, low mood, anxiety and issues with memory and concentration. It is clear that such symptoms could affect a person’s work and lead to issues with performance and attendance.
The menopause at work
The menopause in the workplace has received increased attention in the last few years, culminating in the launch of a parliamentary inquiry by the Women and Equalities Committee on 23 July 2021. The inquiry was launched as a result of a survey which found that 3 in 5 menopausal people were negatively affected at work and around 900,000 people had left their jobs because of menopausal symptoms. More recently, on 14 October 2021 the Institution of Occupational Safety and Health made a number of recommendations to employers to support people going through the menopause at work.
Women between 50 and 64 years’ old make up a substantial part of the workforce with 4,444,000 in employment between July and September 2021. Many of these women are likely to experience symptoms of the menopause to varying degrees. Employers should take time to consider how they can support employees going through the menopause to retain talent and avoid potential claims.
The risk to employers
In 2020, 16 employment claims were brought relating to the menopause (an increase from 6 claims brought in 2019) and 10 menopause claims had been brought by August this year. Whilst these numbers seem relatively insignificant, they show that menopause claims are on the rise. The most likely claims an employer may face if menopausal employees feel they have been unfairly treated are discrimination claims.
The menopause is not a protected characteristic under the Equality Act 2010 so claims arising from the menopause may be brought under the protected characteristics of disability, sex and age. Employers should also note that transgender men may be affected by the menopause and may have a further avenue of claim under the protected characteristic of gender reassignment.
Disability Discrimination
Disability discrimination is the most likely basis for a menopause claim due to its physical and psychological symptoms. The Tribunal held in Davies v Scottish Courts and Tribunal Service that symptoms of the menopause can amount to a disability. In this case, the claimant experienced heavy bleeding, light headedness, poor concentration, memory loss and feeling emotional. She was awarded £19,000, £5,000 of which was an injury to feelings award in respect of disability discrimination.
That is not to say that every person who goes through the menopause has a disability as it depends on whether the symptoms have a substantial and long term (i.e. last or likely to last for 12 months or more) adverse effect on their ability to do normal day to day activities, such as work.
Common symptoms of the menopause can have a substantial effect. In Daley v Optiva, the claimant experienced “well known” symptoms of the menopause and it was held that she was disabled as her symptoms caused her substantial difficulties with concentration, memory and fatigue which impacted her ability to do day to day tasks, for example she struggled to read documents and remember work processes.
Where an employee’s symptoms amount to a disability, a failure to make reasonable adjustments to alleviate any disadvantage to them could lead to a separate claim. There are many adjustments that may be effective for menopausal symptoms and can be made at little inconvenience or cost to an employer (such as placing an employee experiencing hot flushes or poor concentration near a window for easy access to fresh air and ventilation).
It may be difficult to identify when an employee is going through the menopause as symptoms can vary and employees may downplay their symptoms. However, an employer who doesn’t actually know that an employee is going through the menopause may still be at fault if the employee gives sufficient information to warrant further investigation into their condition. In McMahon v Rothwell and Evans LLP, the employee’s sickness absence had been due to dry eyes which are a symptom of the menopause but the Tribunal “would not expect the person in the street to necessarily know this”, indicating that a more commonly known symptom of the menopause, such as hot flushes, may be sufficient to put the employer on notice of the need to investigate.
Further pitfalls to avoid
Sex discrimination
The menopause should be managed in the same way as any other illness would be, despite the fact that only women (and trans men) may experience it. A claim of sex discrimination was upheld in Merchant v BT plc where the claimant gave her manager a letter confirming she was going through the menopause and her concentration could be affected but she was dismissed for poor performance. It was found that a man with similar symptoms would not have been treated this way.
Harassment
An employee successfully claimed harassment against her employer in A v Bonmarche after a colleague called her a “dinosaur” and related her failure to staple paper together to her going through the menopause. However, employers should not be afraid to discuss the menopause with their employees in a sensitive and constructive way, as in Morris v Dijla Ltd, where the Tribunal rejected a claim of harassment as the manager’s suggestion that the claimant should go part time because of her menopausal symptoms was part of an ongoing discussion with her about it.
Unfair dismissal
In Davies v Scottish Courts and Tribunals Service, it was held that the claimant was unfairly dismissed when her employer dismissed her for lying about thinking her medication (which was mixed with water) had been mistakenly given to a member of the public. The employer had failed to consider that she had been confused and suffered memory loss caused by the menopause.
How to manage the menopause in the workplace
- Workplace policies – Consider putting in place a menopause workplace policy to communicate the company’s support for employees or updating existing policies to ensure they cater for menopausal employees.
- Education – Educate employees on the menopause and raise awareness of the support available (whether from the company or externally).
- Training – Train managers on how to deal with someone who comes to them about menopausal symptoms. It is important that managers know to treat each case individually to avoid discrimination.
- Flexible working – Menopausal employees may struggle to work in the office so ensure that all employees are aware of the company’s flexible working policy and take any menopausal symptoms into account when considering requests.
- Workplace adjustments – Ensure the workplace temperature is not too low or too high, ensure there is sufficient ventilation, consider creating quiet spaces for employees to take breaks, ensure there is plenty of natural light and provide cold water stations.
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