Sarah Hayes | 30th November 2021

Menopause and Employment Law : Is it a disability and what steps can employers take?


Sarah Hayes | 30th November 2021

Menopause and Employment Law : Is it a disability and what steps can employers take?

Following on from World Menopause Awareness Month, and the recent Employment Tribunal case of Rooney v Leicester City Council, the menopause is a topic which is rapidly gathering momentum within employment law and in the wider media.

Menopause : Practical steps for employers to follow

In this blog we will be considering whether the menopause is a disability and, in light of recently published ACAS guidance, the key practical steps for employers to follow.

What is the menopause?

The menopause is a natural stage of life which affects around half of the population. The menopause usually happens in women aged between 45 and 55, although it can happen earlier or later than this. Transgender men and people who are intersex, or identify as non-binary, may also experience menopause and the symptoms.

There are 3 different stages to the menopause:

  1. perimenopause
  2. menopause
  3. postmenopause

The menopause is generally said to have occurred when there have been no menstrual cycles for 12 consecutive months, but this can vary.

Symptoms usually last for around 4 years, but they can be experienced for much longer. Whilst the symptoms vary between individuals, some commonly experienced symptoms include insomnia, joint problems, unpredictable hot flushes, brain fog, anxiety, exhaustion, heavy bleeding, low confidence and fatigue.

What is a disability?

Under the Equality Act 2010, a disability is defined as a physical or a mental impairment which has a substantial and long-term adverse impact on the individual’s ability to carry out their normal day to day activities. Certain conditions are expressly deemed to be disabilities for the purposes of the Equality Act.

Can the menopause constitute a disability?

The menopause is not expressly listed as a deemed disability. This means that the tribunal is required to consider whether the circumstances of each case could give rise to a disability within the definition as set out in the Equality Act 2010 above.

This is an area in which, at present, very few tribunal cases have been brought. The recent case of Rooney v Leicester City Council is therefore helpful in considering this point. This case reached the Employment Appeal Tribunal which determined that an employment tribunal had wrongly decided that a woman suffering with menopausal symptoms was not disabled.

The judge stated that it is important for the tribunal to consider what activities the individual cannot do, rather than what they can still do. It also held that the tribunal was wrong to have concluded that the range of symptoms Ms Rooney was experiencing only had a minor or trivial effect on her day-to-day activities. As a result, the Employment Appeal Tribunal has allowed the appeal and Ms Rooney’s case will be referred back to the tribunal for further consideration.

This case has demonstrated the importance of carefully considering the facts of each case.

Employers should be aware that, if an employee is put at a disadvantage and treated less favourably because of their menopause symptoms, this could amount to disability discrimination, including claims for ‘discrimination arising from disability’.

There are two ongoing parliamentary enquiries which are considering the impact of the menopause in the workplace. Alongside the wider media reporting on this area, it is likely that we will see further developments in coming months.

What practical steps should employers be taking?

The new ACAS guidance outlines the importance of employers being aware that menopausal symptoms may impact on women, trans and intersex people going through the menopause, as well as, relatives, colleagues and carers who are supporting someone going through it.

We have summarised the key practical steps below.

  1. Training managers

Managers should be familiar with the different stages of menopause and how this can affect staff. They should have an understanding of gender identity and gender reassignment discrimination.

ACAS reiterates the importance of training supervisors to ensure that they are equipped to talk sensitively with and encourage staff to raise menopause concerns. Those that hold supervisory roles should know about the workplace support that is available and be familiar with relevant workplace policies.

The Chartered Institute for Personnel Development has published a useful “Guide to Managing Menopause at Work: Guidance for Line Managers”, which sets out how to conduct sensitive discussions.

  1. Creating and encouraging an open working environment

Employers should be aiming to create a positive and open working environment to minimise the risk of any issues arising.

Alongside offering training, having a menopause or wellbeing champion at work can help to support those that are affected by the menopause. Individual conversations should be held confidentially to ensure the employee is comfortable and the meeting will not be disturbed.

It is good practice for an employer to allow staff to attend medical appointments related to the menopause.

  1. Review health and safety checks and the physical working environment

By law, employers are responsible for the health and safety of all staff (including those working from home). This involves conducting a risk assessment of the workplace to minimise health and safety risks for staff. This should be regularly reviewed.

For staff affected by the menopause this would include considering whether menopausal symptoms could be impacted by the physical working environment. ACAS gives some practical examples to consider, including:

  • steps that could assist with the temperature and ventilation of the workplace;
  • the material and the fit of the organisation’s uniform (if applicable);
  • whether there’s somewhere suitable for staff to rest if needed;
  • whether toilet facilities are easily accessible; and
  • whether cold drinking water is available.
  1. What other steps should an employer take to support the individual

The menopause can impact upon employees in different ways and employers should be proactive in talking to staff about any “reasonable adjustments” that could help them to do their job.

Employers should ensure that, if appropriate, they obtain suitable medical evidence from occupational health or a GP relating to the employee. Any referral should be drafted carefully to help to understand whether the employee is disabled within the meaning of the Equality Act, and they can be supported.

An employer should be flexible where possible to support staff experiencing menopausal symptoms. This would include considering changing shift patterns or offering additional breaks to an employee.

If an employee is absent due to the menopause employers should be careful with how absences are recorded. The ACAS guidance recommends that absences are recorded separately as it may be discriminatory to measure menopause-related absence as part of the person’s overall attendance record.

  1. Consider implementing a menopause policy

Finally, employers may wish to consider implementing a specific policy which addresses the menopause and the support available. Amongst other points, this could:

  • explain who the organisation’s point of contact is for queries related to the menopause;
  • outline the training and support available; and
  • include information on gender identity and gender reassignment discrimination.

If you require any support or assistance, please contact a member of the Employment team.