Menopause and Employment Law : An employer’s obligations
Menopause and Employment Law : An employer’s obligations
This October is World Menopause Month and the issues experienced by women going through the menopause are in the spotlight once again.
Women represent nearly 50% of the U.K.’s workforce, and with around 3.5 million women aged 50 or over, the menopause is an issue which affects a huge proportion of employees. Six out of every ten women experiencing menopausal symptoms say that these have a negative impact on them at work; however, unfortunately, until recently it hasn’t been a topic which employers have felt comfortable getting to grips with. These statistics demonstrate just how important it is for employers to get to grips with the impact of the menopause in the workplace and how to support employees going through this period in their life.
Menopause and the Equality Act
Although the menopause is not a specific protected characteristic, women going through the menopause can still be protected under the Equality Act 2010 based on the protected characteristics of age, sex and disability. Employers also owe general health and safety obligations to ensure employees well-being at work and women benefit from general rights to request flexible working.
In this blog we will be considering the existing protection under the Equality Act and the key practical steps for employers to follow.
What is the menopause?
As a very broad overview, the menopause is a natural stage of life. It usually happens in women aged between 45 and 55 years old, 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:
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 by way of some examples.
How is the menopause protected under the Equality Act 2010?
The menopause statistically affects women between the ages of around 45 to 55 years old. Less favourable treatment of staff experiencing menopause can therefore already give rise to claims for age and sex discrimination. Several successful claims have already been bought in the Employment Tribunal on this basis.
Can the menopause constitute 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.
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.
Recent cases have established that typical menopause symptoms can amount to a disability under this test. Judges dealing with these claims have highlighted that it’s vital to consider what activities the individual cannot do, rather than focus on what they can still do. Some examples of recent cases where the employees menopause did amount to a disability include:
- Donnachie v TelentTechnology Service Ltd – Ms Donnachie experienced hot flushes seven or eight times a day which were regularly accompanied by palpitations and feelings of anxiety. The frequency of the flushes would increase when Ms Donnachie was under stress or pressure. She also experienced night sweats and would wake six to eight times a night. She suffered from fatigue, anxiety and memory and concentration difficulties. Ms Donnachie was prescribed HRT patches by her GP which improved her symptoms, but they still persisted. Ms Donnachie’s symptoms impacted day-to-day activities including carrying out household chores, walking, reading, writing, using a computer and sleeping. Ms Donnachie’s employer argued she merely suffered from typical menopausal symptoms and therefore the impact on her was not substantial. However, the tribunal held that the impact of Ms Donnachie’s symptoms on her day-to-day activities was more than minor or trivial and her menopause symptoms did amount to a disability. It could not see any reason in principle why “typical” menopause symptoms could not amount to a disability.
- Davies v Scottish Courts & Tribunals Service – Ms Davies was disciplined and dismissed due to her forgetful and confused behaviour which were symptoms of her peri-menopause. Her employer considered that she had lied and brought the court into disrepute when she advised two colleagues in court that they may have drunk water containing her medication. Ms Davies was dismissed and successfully claimed unfair dismissal and discrimination arising from disability. The employment tribunal held that her dismissal was because of conduct arising from her disability (as her peri-menopausal condition caused her to be forgetful and confused about whether she had taken her medication and put it in the water).
It is important for employees to be open and honest about their symptoms though, otherwise they may not be able to rely on them later on even if they did amount to a disability.
What are an employer’s obligations when a disability is established?
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’.
Where an employee is disabled, the obligation to make reasonable adjustments also arises. Reasonable adjustments can include adjustments to the working environment, for example, changes to temperature and ventilation, and changes to the employees role or working pattern, for example, altering working hours or permitting working from home if this would assist the employee to manage their symptoms.
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.
What practical steps should all employers be taking?
The ACAS guidance published in 2022 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.
2. 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.
The Government has accepted a recommend to launch a public health campaign around menopause and to appoint a menopause ambassador to monitor the progress made by businesses on awareness. Employers therefore need to consider how they can raise awareness internally, for example by internal campaigns, supporting world menopause day in October or menopause awareness month in November or introducing menopause champions.
It is also good practice for an employer to allow staff to attend medical appointments related to the menopause.
3. 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.
4. 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.
Whilst not currently mandatory, this is something the Government has confirmed it will focus on encouraging employers to implement and therefore will become key in future.
If you require any support or assistance or would like to arrange a bespoke in-house training session on the menopause for your managers please contact Charlotte Farrell and Tabytha Cunningham for more details.
We run regular HR courses at our offices and external venues throughout the year. Visit our Resources page to look out for upcoming events.