On World Menopause Day, we encourage employers to think about support available to employees who are perimenopausal and going through menopause.
Why should employers be aware of menopause?
A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development found that three in five menopausal employees were negatively affected at work and that almost 900,000 employees in the UK left their jobs over an undefined period of time because of menopausal symptoms. Employees experiencing symptoms of menopause are often skilled and experienced employees who are valued members of the workforce. Employers and the wider economy cannot afford for such a valuable resource to feel they have to leave work. However, it is also important that they are given the support they need to ensure their performance and attendance at work is not detrimentally affected.
What are the risks where this is not managed well?
We have already highlighted the risk of losing good and valuable people resource from your business. For many job applicants, whether an employer is openly supportive of these issues can be a deciding factor in whether they accept a role, which means in the battle for talent that it is very relevant.
It is also important to remember the Tribunal-related risks which can follow from not providing the appropriate support to women who are going through the menopause.
Menopause could be covered under three protected characteristics under the Equality Act 2010: sex, age and disability. Employees who have been discriminated against as a result of menopause could raise a claim of direct or indirect discrimination on these grounds.
For a disability discrimination claim to be successful, menopause must be considered a physical impairment which has a substantial and long-term adverse effect on the ability to carry out daily activities. Given the differing impact of the change on women, it may be that some women meet the current test, but others do not. Further, if an employee has not informed her employer that she is experiencing menopausal symptoms, she may have the added hurdle of convincing a Tribunal that her employer knew she should be treated as “disabled“. However, this will only get an employer so far – if they should reasonably have known, then they may still be liable. As ever, it is best practice for an employer to make sensible enquiries and to take appropriate medical advice where it has any questions about health in the workplace.
Earlier this year, the chair of the Women and Equalities Committee announced that changes to equality legislation to protect women going through menopause “should not be ruled out“.An inquiry led by the Committee will consider whether equality laws should be strengthened to better protect women going through menopause from being subject to discrimination, by making menopause a protected characteristic under the Equality Act 2010. We await the outcome of the inquiry with interest.
Recent case law
Whilst there have not been many discrimination claims related to menopause, we are seeing more cases where menopause is being included in claims.
In the case of A v. Bonmarche Ltd (2019), the claimant was successful in her claims of age and sex discrimination and was awarded £28,000 as a result of a course of bullying, harassment and discrimination in the workplace based on the claimant going through menopause.
More recently, in Rooney v. Leicester City Council (2020), the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) erred in striking out an employee’s claims on the grounds of disability (for menopause related symptoms) and sex discrimination, harassment and victimisation claims at a preliminary hearing without properly analysing them and providing insufficient reasons for its decision. The EAT held that the ET erred in concluding that the employee was not a disabled person as a result of her menopausal symptoms. The EAT noted that it was difficult in this case to understand how the ET had decided that the employee’s symptoms, which were both physical and psychological, and included insomnia, confusion, memory loss, depression and hot flushes, had only minor effects on her daily activities.
What can employers do?
We encourage employers to spread awareness of perimenopause and menopause and how they can affect employees in the workplace. This should support the retention and wellbeing of employees in the workplace. Employers can also reduce the risks of any discrimination claims. Some options include:
- providing training (especially to managers) about perimenopause and menopause as an occupational health, gender and age equality issue;
- considering and, if appropriate, implementing reasonable adjustments requests, such as flexible working hours or arrangements to help manage symptoms;
- including menopause in their sick policy;
- providing access to support, such as occupational health or informal help to ensure women at work are given the information they need to ensure they can be at their best and meet the requirements of their role; and
- creating an open and inclusive culture in which employees feel comfortable discussing menopause.
