Employers must be aware of their legal obligations to menopausal women, writes KELLY McMANUS
There has been a notable increase recently in the number of employment tribunal cases in the UK that relate to women who are going through menopause and are having issues within the workplace. Many preconceptions and much misinformation about menopause persist, and it needs greater understanding, affecting, as it does, all women at some stage.
Most commonly affected are women aged between 45-59, a group which makes up a significant percentage of the workforce. It is of particular concern that as many as 25% of women with menopausal symptoms have considered leaving the workplace.
The reasons for this are varied but, arguably, the most common theme is employers’ lack of understanding and awareness of how to support employees experiencing menopausal symptoms. As a result, there have been cases of direct and indirect discrimination.
Since menopause is not a recognised protected characteristic the claims must be raised as age, sex or disability discrimination. Obviously, each case will turn on its facts and as menopause is not specifically by definition a disability, the severity and duration of symptoms suffered will be crucial in establishing this.
An example of such a case is Merchant v BT (2012). In this case a female employee was suffering a lack of concentration due to the menopause. Her male manager dismissed her for poor performance, dismissed the medical evidence that was presented, and related the employee’s experience to that of his own wife’s.
The tribunal upheld Ms Merchant’s claims of sex discrimination and pointed out that the manager would never have adopted “this bizarre and irrational approach” with other non-female-related conditions. This was considered of particular significance, because women experience menopause in different ways and with varying severity of symptoms.
The failure to refer Ms Merchant for occupational health assessment following the letter from the GP, and before taking the decision to dismiss, was considered to be direct sex discrimination. The tribunal concluded, in this case, that a man suffering from ill-health with comparable symptoms from a medical condition (in this case, affecting concentration) and with performance issues, would not have been treated in the same way. This was also directly against the employer’s own policy.
In the case of A v Bonmarche Ltd (2019), a manager bullied the claimant who was going through menopause, and encouraged other members of staff to do the same. He called her a dinosaur, amongst other things, and incited other employees to join in. After a period of sick leave, the claimant returned to her role as a senior supervisor, via a phased approach, but a week later the manager placed her back on full time hours. The claimant left her position and was successful at the Employment Tribunal for sex and age discrimination.
There is currently an ongoing inquiry by the Women and Equalities Committee, into discrimination in the workplace relating to menopause. Its report has yet to be finalised or make recommendations, but the result could be a change in legislation which would impose positive statutory obligations upon employers in dealing with employees who are going through menopause.
A clear lesson from the Merchant case is that medical advice/evidence should be sought if an employer is considering dismissing an employee who is going through the menopause, and where it is claimed that this has had an impact on their performance.
Risk assessments and training are crucial tools to be used by employers when managing the workplace. A menopause policy should also be considered, though once a policy is in place, a failure to follow it properly may itself result in the risk of an employment tribunal claim. A policy should only be implemented if the employer is confident that the staff are appropriately trained to follow it.
The Chartered Institute of Personnel and Development (CIPD) has provided a guide to managing menopause at work. It emphasises that a manager’s role is to ensure that employees suffering menopausal symptoms receive the same support and understanding as for any health issue.
There are practical examples of reasonable adjustments that can be made for common menopausal symptoms such as access to fans and cold water for those experiencing hot flushes, and the ability to start later or work from home if employees are experiencing disturbed sleep.
Further information and advice on this topic will be delivered by Navigator, on 6 September 2022, in an autumn seminar update on Employment Law matters. More details here.